1

As the court explains below, the first ground of Stroman’s

amended petition is presented solely as a gateway for

consideration of procedurally-defaulted claims, not as an

independent ground for habeas corpus relief. For clarity, and for

purposes of following the numbering system that Stroman uses, the

court will refer to nine grounds rather than eight.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARK ANTHONY STROMAN, §

 §

Petitioner, §

 § 

VS. §

 § Civil Action No. 3:05-CV-1616-D

 §

RICK THALER, Director, § 

Texas Department of Criminal §

Justice, Correctional §

Institutions Division, §

 §

Respondent. §

MEMORANDUM OPINION

 AND ORDER 

Petitioner Mark Anthony Stroman (“Stroman”), convicted and

sentenced to death for capital murder, petitions the court on nine

grounds for a writ of habeas corpus.1 Concluding that all but

three grounds are procedurally barred and that Stroman is not

entitled to relief on the remaining grounds under the standards

prescribed by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254, the court denies his petition and

dismisses this action with prejudice.

 

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2

Citations to “Tr.” are to the volume and page of the

transcript of Stroman’s trial.

- 2 -

I

A

On October 4, 2001 Stroman shot and killed Vasudev Patel

(“Patel”) in the course of attempting to rob Patel at the gas

station that he operated. A store security camera graphically

captured the attempted robbery and murder. When Stroman entered

the station early that morning, he immediately demanded money from

Patel. Patel reached for a .22 caliber pistol that he kept under

the cash register, but he did not retrieve it. Stroman then shot

the unarmed Patel in the upper middle of his chest, causing Patel

to fall to the floor. The surveillance video showed that while

Patel lay dying on the floor, Stroman was unable to open the cash

register. Stroman demanded that Patel “open the register or I’ll

kill you,” and “open this register now or I will blow your brains

out.” Tr. 19:24.2

Stroman later described the offense, and his motives and

preparation for it, to a fellow prisoner, Melquaides Gonzales

(“Gonzales”). Gonzales testified at Stroman’s trial that Stroman

told him he had “been in the store two or three times previously to

check it out and he didn’t see any cameras.” Id. at 18:151.

Stroman admitted that he intentionally killed Patel with a .44

chrome-plated “big long pistol.” Id. at 151 and 155. 

 

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- 3 -

Before Stroman murdered Patel, he took this pistol, without

permission, from the home where he was staying. The vehicle that

Stroman was driving at the time of the offense was later found with

a paper temporary buyer’s license plate displayed on the back and

two metal license plates in the trunk. The police also recovered

from Stroman’s vehicle and residence various automatic and semiautomatic weapons, ammunition, and a ballistic vest.

The murder of Patel was the last of a series of violent crimes

that Stroman committed following the terrorist attacks of September

11, 2001 against those whom he considered to be of Middle Eastern

descent. On September 15, 2001 Stroman murdered Waqar Hasan

(“Hasan”) by shooting him in the head as Hasan grilled hamburgers

in his Dallas store. Stroman later told Gonzales that his murder

of Hasan was his ninth crime of this type. Stroman also

demonstrated racial motives for the killing, and stated that he was

a member of the Aryan Brotherhood, had a .44 pistol and some

automatic weapons, and intended to go to a particular shopping mall

and start shooting everybody because of all of the “rag heads”

there. Tr. 19:129-130. 

On September 21, 2001 Stroman shot Raisuddin Bhuiuian

(“Bhuiuian”) in the face as Bhuiuian worked in a convenience store

and service station. Unlike the murder of Patel, the crimes

against Hasan and Bhuiuian did not involve robbery. Stroman

admitted to all of these crimes and lacked remorse for any of them,

 

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3“In Texas, habeas proceedings run concurrently with direct

appeal.” Hatten v. Quarterman, 570 F.3d 595, 599 (5th Cir. 2009)

(citing Tex. Code Crim. Proc. Ann. art. 11.071 § 4(a)).

- 4 -

claiming that he had performed a patriotic duty. Regarding his

murder of Patel, Stroman told Gonzales that his country “hadn’t

done their job so he was going to do it for us.” Tr. 18:151.

B

On November 15, 2001 Stroman was charged with capital murder:

murdering Patel in the course of committing and attempting to

commit robbery. On April 4, 2002 a jury found him guilty.

Following the punishment phase, and based on the jury’s answers to

the special issues, the trial court sentenced Stroman to death. On

November 19, 2003 the Texas Court of Criminal Appeals (“TCCA”)

affirmed his conviction and sentence on direct appeal. See Stroman

v. State, 2003 WL 22721137, at *3 (Tex. Crim. App. Nov. 19, 2003)

(not designated for publication). Stroman petitioned for a writ of

certiorari, which the Supreme Court of the United States denied on

June 28, 2004. Stroman v. Texas, 542 U.S. 939 (2004). 

While Stroman’s appeal was pending, he filed on November 13,

2003 an application in Texas state court for a writ of habeas

corpus.3 Having previously concluded that no evidentiary hearing

was necessary, the state habeas court on May 26, 2005 entered its

findings of fact and conclusions of law, recommending that the

application be denied. Ex parte Stroman, No. F01-40949-V(A) (292nd

 

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4

“Texas trial courts only make recommendations to the [TCCA]

but do not rule on habeas petitions.” Id. at 599 n.3 (citing Ex

Parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006)).

5

Throughout the remainder of this memorandum opinion and

order, except as the context otherwise requires, the court will

refer to the “state habeas court” as a single tribunal, although it

recognizes that the TCCA independently determined that habeas

relief should be denied.

6Stroman filed a corrected brief on July 25, 2006.

7

Stroman numbered these as three grounds, but the first ground

consisted of two parts.

- 5 -

Dist. Ct., Dallas County, Tex.).4 On July 27, 2005 the TCCA denied

the application based on the state habeas court’s findings and

conclusions and on its own review of the record. Ex parte Stroman,

No. WR-62,298-01 (Tex. Crim. App. July 27, 2005) (per curiam)

(unpublished order).5

On July 24, 20066 Stroman filed in this court a petition for

a writ of habeas corpus, seeking relief on the following four7

grounds:

1. Stroman was denied effective assistance of counsel

under the Sixth and Fourteenth Amendments when his

trial counsel failed to challenge prospective juror

Janet Gurley.

2. Stroman was denied effective assistance of counsel

under the Sixth and Fourteenth Amendments when his

trial counsel failed to object to prejudicial

hearsay during the punishment phase of the trial.

3. The cumulative errors caused by counsel’s deficient

performance violated Stroman’s right to due

process.

4. The death penalty violates evolving standards of

decency under the Eighth Amendment’s prohibition of

 

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8

Stroman filed the same motion on March 17, 2008. Judge Lynn

denied the motion in her June 9, 2008 order.

- 6 -

cruel and unusual punishment.

Respondent answered on November 29, 2006. 

Following repeated pro se complaints by Stroman about his

appointed federal habeas counsel (who was himself a replacement for

Stroman’s first appointed counsel), the magistrate judge on March

22, 2007 appointed another lawyer to represent Stroman.

Represented by new counsel, Stroman obtained leave of court for an

extension of time through October 18, 2007 to file an amended

petition. He filed the amended petition on September 29, 2007. 

Stroman included in his amended petition a motion for an

evidentiary hearing based on circumstances that render the state

corrective process ineffective to protect the rights of capital

petitioners in Texas.8

 He filed on the same date a motion for

equitable tolling, funding, discovery, and evidentiary hearing

based on lack of meaningful assistance of federal habeas counsel,

and a motion for evidentiary hearing on ineffective assistance of

trial counsel. On March 24, 2008 the magistrate judge denied these

motions. Stroman objected, and on June 9, 2008 Judge Lynn, to whom

this case was then assigned, overruled the objections and denied

Stroman’s motions. On February 2, 2008 Stroman filed a motion for

stay and abeyance, which the magistrate judge denied on August 21,

2008.

 

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- 7 -

In his amended petition, Stroman asserts the following

grounds:

1. Actual innocence as a gateway to procedurally

defaulted claims.

2. Actual innocence of capital murder.

3. Violation of his Sixth and Fourteenth Amendment

rights to reasonable doubt and the presumption of

innocence.

4. Violation of his Sixth and Fourteenth Amendment

rights to a fair defense.

5. Violation of his Sixth and Fourteenth Amendment

rights to effective assistance of counsel based on

his trial counsel’s failure to timely investigate

and introduce condition-of-mind evidence at the

guilt/innocence stage.

6. Violation of his Sixth and Fourteenth Amendment

rights to effective assistance of counsel based on

his trial counsel’s failure to timely investigate

and develop crucial evidence and to present an

effective theory.

7. Stroman was denied effective assistance of counsel

under the Sixth and Fourteenth Amendments when his

trial counsel failed to challenge prospective juror

Janet Gurley during voir dire.

8. Stroman was denied effective assistance of counsel

under the Sixth and Fourteenth Amendments when his

trial counsel failed to object to hearsay.

9. Stroman is denied his right to be free from cruel

and unusual punishment under the Eighth Amendment.

The first ground is presented solely as a gateway for the

consideration of procedurally-defaulted claims (ground 2-6), and

not as an independent ground for habeas corpus relief. Grounds 7,

 

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9

He dropped ground 3 of his petition (cumulative error).

10Because review of the magistrate judge’s recommendation is

de novo, the court is denying Stroman’s amended petition based on

this memorandum opinion and order, without considering the

magistrate judge’s findings, conclusions, and recommendation.

- 8 -

8, and 9 were originally grounds 1, 2, and 4 of his petition.9 

On January 28, 2008 respondent filed a motion to dismiss

Stroman’s amended petition. The magistrate judge filed his

findings, conclusions, and recommendation on August 21, 2008.

Respondent filed objections on August 26, 2008, and Stroman filed

objections on October 13, 2008.10 On July 1, 2009 this case was

transferred to the undersigned’s docket, and on September 4, 2009

the court heard oral argument.

II

Stroman’s habeas petition is governed by AEDPA. 28 U.S.C.

§ 2254(d) provides:

An application for a 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 the

 

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- 9 -

State court proceeding.

Id. This court’s determination requires deference to the state

habeas court’s adjudication of Stroman’s claims unless the

adjudication is flawed under at least one of these provisos. See,

e.g., Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.), petition

for cert. filed, (U.S. June 29, 2009) (No. 09-5070). “[A] federal

court’s review of a claim adjudicated in a state court is

deferential[.]” Summers v. Dretke, 431 F.3d 861, 868 (5th Cir.

2005).

Under the “contrary to” clause [of

§ 2254(d)(1)], a federal habeas court may

grant [a writ of habeas corpus] if the state

court arrives at a conclusion opposite to that

reached by [the Supreme Court of the United

States] on a question of law or if the state

court decides a case differently than [the

Supreme Court] has on a set of materially

indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “A

‘run-of-the-mill state-court decision applying the correct legal

rule’ would not fit within this exception as ‘diametrically

different’ or ‘opposite in character or nature’ from Supreme Court

precedent.” Beazley v. Johnson, 242 F.3d 248, 256 (5th Cir. 2001)

(quoting Williams, 529 U.S. at 406).

“Under the ‘unreasonable application’ clause [of

§ 2254(d)(1)], a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that

 

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- 10 -

principle to the facts of the prisoner’s case.” Williams, 529 U.S.

at 413. “[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. “A state court’s decision will be

based on an unreasonable application of clearly established federal

law when it is objectively unreasonable.” Kutzner v. Johnson, 242

F.3d 605, 608 (5th Cir. 2001). “[A]n unreasonable application of

federal law is different from an incorrect application of federal

law.” Williams, 529 U.S. at 410. “Under § 2254(d)(1)’s

‘unreasonable application’ clause, then, a federal habeas court may

not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable.” Id. at 411.

“[A] federal court is not to substitute its judgment for that of

the state court. Rather under AEDPA, federal habeas relief is

proper only if the state habeas court applied federal law in an

‘objectively unreasonable’ manner.” Schaetzle v. Cockrell, 343

F.3d 440, 447 (5th Cir. 2003). 

Stroman’s ineffective assistance claims present mixed

questions of fact and law. See, e.g., Creel v. Johnson, 162 F.3d

385, 395 (5th Cir. 1998) (holding that both prongs of the test of

Strickland v. Washington, 466 U.S. 668 (1984), “present a mixed

 

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- 11 -

question of law and fact”). “‘[M]ixed questions of law and fact

are reviewed under § 2254(d)(1)[.]’” Martin v. Cain, 246 F.3d 471,

475 (5th Cir. 2001) (quoting Corwin v. Johnson, 150 F.3d 467, 471

(5th Cir. 1998)). This means that Stroman must demonstrate that

the state habeas court’s decision was contrary to, or involved an

unreasonable application of, clearly established federal law, as

determined by the Supreme Court.

“‘[A] federal habeas court is authorized by Section 2254(d) to

review only a state court’s “decision,” and not the written opinion

explaining that decision.’” Summers, 431 F.3d at 868 (quoting

Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Neal v.

Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (per curiam) (en banc));

Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008) (“[W]e

review only the ultimate decision of the state court, and not the

specific contents of its reasoning or opinion.” (citing cases),

cert. denied, ___ U.S. ___, 129 S.Ct. 2383 (2009)). 

“Factual findings of the state court are presumed to be

correct[.]” Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir. 2001).

A federal habeas court must “defer to them unless they were based

on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.” Id. (internal

quotation marks omitted) (quoting Chambers v. Johnson, 218 F.3d

360, 363 (5th Cir. 2000)). “The presumption of correctness not

only applies to explicit findings of fact, but it also applies to

 

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11Each of these grounds relies on the same evidence of the

condition of Stroman’s mind at the time of the offense and similar

theories of diminished responsibility as that presented in support

of his actual innocence claims. 

- 12 -

those unarticulated findings which are necessary to the state

court’s conclusions of mixed law and fact.” Valdez v. Cockrell,

274 F.3d 941, 948 n.11 (5th Cir. 2001) (citing cases). “When

challenging a state court’s factual determinations, a petitioner

must rebut this presumption of correctness by ‘clear and convincing

evidence.’” Barnes v. Johnson, 160 F.3d 218, 222 (5th Cir. 1998)

(quoting 28 U.S.C. § 2254(e)(1)).

III

The court must first decide whether Stroman’s grounds 2

through 6 are procedurally barred and whether ground 1 is a

sufficient gateway through which he can present claims that would

otherwise be procedurally defaulted.

A

Respondent maintains that grounds 2 through 6 of Stroman’s

amended petition are unexhausted and procedurally barred.11 Stroman

does not contend that these grounds are exhausted. Instead, he

seeks to excuse the exhaustion requirement and avoid the procedural

bar by demonstrating that failure to consider the claims will

result in a fundamental miscarriage of justice because he is

actually innocent of the offense of capital murder. Alternatively,

he posits that circumstances exist under 28 U.S.C.

 

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- 13 -

§ 2254(b)(1)(B)(ii) that render the state corrective process

ineffective to protect his rights.

B

“Under 28 U.S.C. § 2254(b)(1)(A), a court shall not grant

habeas relief unless ‘the applicant has exhausted the remedies

available in the courts of the State.’” Beazley, 242 F.3d at 263

(quoting § 2254(b)(1)(A)). A petition containing unexhausted

claims must be dismissed or stayed so that the petitioner can

return to state court to exhaust state remedies. See Rhines v.

Weber, 544 U.S. 269, 277-78 (2005); Rose v. Lundy, 455 U.S. 509,

519-20 (1982). This would be futile, and the federal court should

find claims to be procedurally barred, “if the petitioner failed to

exhaust state remedies and the court to which the petitioner would

be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred.”

Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also Neville

v. Dretke, 423 F.3d 474, 479-80 (5th Cir. 2005) (holding

unexhausted claims ineligible for stay under Rhines when state

court would find them procedurally barred). 

Texas law precludes successive habeas claims except in narrow

circumstances. See Tex. Code Crim. Proc. Ann. art. 11.071 § 5

(Vernon Supp. 2008). Under Texas law, a habeas petitioner is

procedurally barred from returning to the Texas courts to exhaust

his claims unless he shows that the factual or legal basis for a

 

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- 14 -

claim was previously unavailable, or he shows that, but for a

violation of the United States Constitution, no rational juror

would have found for the State. See id. Therefore, such

unexhausted claims would normally be considered procedurally

barred. See Beazley, 242 F.3d at 264. 

Stroman can avoid the procedural bar “if he falls within the

‘narrow class of cases . . . implicating a fundamental miscarriage

of justice.’” Schlup v. Delo, 513 U.S. 298, 314-15 (1995) (quoting

McCleskey v. Zant, 499 U.S. 467, 494 (1991)). In House v. Bell,

547 U.S. 518 (2006), the Supreme Court held that, under the Schlup

standard, “prisoners asserting innocence as a gateway to defaulted

claims must establish that, in light of new evidence, ‘it is more

likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.’” Id. at 536-537

(quoting Schlup, 513 U.S. at 327). Such a gateway claim requires

“new reliable evidence——whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence——that was not presented at trial.” Schlup, 513 U.S. at

324. “[T]he habeas court must consider ‘all the evidence,’ old and

new, incriminating and exculpatory” in order to make “a

probabilistic determination about what reasonable, properly

instructed jurors would do.” House, 547 U.S. at 538 (quoting

Schlup, 513 U.S. at 327-328). Further, the Schlup standard is

“demanding and permits review only in the ‘extraordinary’ case.”

 

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12Tex. Penal Code Ann. § 6.03 (Vernon 1994) defines the mental

states of “intentionally” and “knowingly” as follows:

(a) A person acts intentionally, or with

intent, with respect to the nature of his

conduct or to a result of his conduct when it

is his conscious objective or desire to engage

in the conduct or cause the result. 

(b) A person acts knowingly, or with

knowledge, with respect to the nature of his

conduct or to circumstances surrounding his

conduct when he is aware of the nature of his

conduct or that the circumstances exist. A

person acts knowingly, or with knowledge, with

respect to a result of his conduct when he is

aware that his conduct is reasonably certain

to cause the result. 

Stroman’s jury was also instructed on the specific intent to kill

in the course of committing or attempting to commit robbery.

- 15 -

House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327). 

C 

Stroman maintains that he is actually innocent of capital

murder because he did not act “intentionally” or “knowingly” due to

various mental impairments that negate the necessary mens rea for

capital murder. Stroman bases this contention on “various mental

impairments, including his involuntary drug addiction to

methamphetamine, organic brain impairment, posttraumatic stress

disorder (PTSD), and history of childhood abuse and neglect.” Am.

Pet. 45 (emphasis omitted) (quoting report of Paula Lundberg-Love,

Ph.D. (“Dr. Lundberg-Love”)).

In accordance with Texas law,12 the jury was instructed as

follows in the charge of the court:

 

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13Citations to “State Rec.” are to the volume and page of the

state district clerk’s record. 

- 16 -

A person acts intentionally, or with

intent, with respect to a result of his

conduct when it is his conscious objective or

desire to cause the result. 

A person acts knowingly, or with

knowledge, with respect to a result of his

conduct when he is aware that his conduct is

reasonably certain to cause the result. 

State Rec. 5:735.13 Citing the opinions of Dr. Lundberg-Love,

Stroman maintains that he did not act with the culpable mental

state of intentional and/or knowing conduct because 

his mental impairments which included

childhood neglect, abuse, PTSD, and chronic

methamphetamine addiction coupled with a 12-13

day sleepless binge of methamphetamine,

resulted in paranoid and delusional behavior

and aggression because Mr. Stroman actually

believed that he was acting on behalf of the

American people to avenge the events of

September 11, 2001. Clearly Mark Stroman was

delusional as a result of the various mental

impairments discussed more fully above. He met

the criterion for a significant mental

impairment and was devoid of the culpable

mental state required by the charged offense,

thus making it appropriate for his attorneys

to raise his condition of the mind in the

guilt/innocence phase of the trial.

Am. Pet. 48 (bold font omitted) (quoting affidavit of Dr. LundbergLove). 

The court holds that Stroman’s evidence is insufficient to

establish that it is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable doubt.

 

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- 17 -

Regarding the intent component, this evidence would not permit a

reasonable juror to question whether Stroman had the conscious

objective or desire to cause Patel’s death when he shot him in the

chest. Nor could a reasonable juror——particularly in light of the

preparations Stroman made to commit this offense——question whether

he intended to commit robbery when he demanded money and threatened

to kill Patel if he did not open the cash register. Further,

considering Stroman’s conduct and the statements he made after the

murder, the expert opinions on which Stroman relies would not

enable a reasonable juror to question whether Stroman acted

knowingly, that is, that he was aware that his conduct was

reasonably certain to cause Patel’s death. 

The delusional thinking on which Stroman relies——that he was

acting to avenge the terrorist attacks of September 11, 2001——does

not negate these elements. Instead, it tends to show motive in

forming the requisite intent. See Jackson v. State, 160 S.W.3d

568, 572 (Tex. Crim. App. 2005) (holding that evidence that showed

that defendant killed his brother because he was so paranoid that

he thought his brother “was out to get him” made it even more

apparent that defendant intended to cause serious bodily injury or

death to his brother, and that evidence of paranoia simply provided

motive for the intentional act). Not only does this evidence not

provide the sort of new, reliable evidence capable of meeting the

demanding standard of Schlup, it does not even tend to disprove the

 

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14Although not mentioned at oral argument, Stroman also argues

in his pleadings that state habeas counsel’s failure to present

these claims to the state habeas court constitutes cause and

prejudice to excuse his procedural default under the doctrine

established in Coleman. As stated in Coleman, however, there is no

constitutional right to counsel in state post-conviction habeas

corpus proceedings. See Coleman, 501 U.S. at 752. Accordingly,

Stroman cannot rely on constitutionally ineffective assistance of

counsel in such proceedings in order to establish cause and

prejudice. See id.; Martinez v. Johnson, 255 F.3d 229, 240-41 (5th

Cir. 2001). 

- 18 -

elements of intentional or knowing conduct under Texas law.

Therefore, Stroman has not made a sufficient showing of actual

innocence to avoid the imposition of the procedural bar.14

D

Stroman argues in the alternative that any failure to exhaust

state remedies should be excused because circumstances exist under

28 U.S.C. § 2254(b)(1)(B)(ii) that render the state corrective

process ineffective to protect his rights. Stroman presents these

circumstances as a systemic failure of the state habeas system to

provide competent counsel to investigate and present habeas claims

to the Texas courts. 

The Fifth Circuit has considered and rejected similar claims

in a number of opinions, such as Ruiz v. Quarterman, 460 F.3d 638

(5th Cir. 2006): 

Ruiz re-characterizes his claim of ineffective

habeas counsel by asserting that the State

obstructed his efforts to prosecute the claims

by appointing incompetent counsel, effectively

making his state remedy illusory and, hence,

insulating his claims from federal review

through the doctrine of procedural default.

 

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15Although Stroman’s counsel made this argument, she maintained

that Stroman is not relying on a theory of individual

ineffectiveness of state habeas counsel. She contended instead

that Stroman is complaining of a broken Texas state habeas process.

Counsel also cited Balentine v. Quarterman, 324 Fed. Appx. 304, 306

(5th Cir. Apr. 13), petition for cert. filed, (U.S. July 2, 2009)

(No. 09-5128), in which the Fifth Circuit rejected this argument.

Regardless how Stroman characterizes his argument, the court must

reject it based on settled circuit precedent.

- 19 -

In Ruiz’s view, he would be better off if

there had been no state habeas proceeding

available or if he had had no appointed

counsel. According to Ruiz, this situation

resulted from a “structural deficiency” in the

state habeas system, rendering that system

“absent” or “ineffective to protect [his]

rights” under AEDPA and providing cause for

his procedural default. Yet the law of this

Court is clear: ineffective state habeas

counsel does not excuse failure to raise

claims in state habeas proceedings.

Id. at 644; see also Roberts v. Dretke, 356 F.3d 632, 640 (5th Cir.

2004) (rejecting argument that ineffective state habeas counsel

could constitute circumstance under 28 U.S.C. § 2254(b)(1)(B)(ii)

to excuse failure to exhaust); Martinez v. Johnson, 255 F.3d 229,

238 n.10 (5th Cir. 2001) (holding that “failure to provide

‘competent’ counsel for a state habeas petition does not fall under

the general catch-all exception provided in 28 U.S.C.

§ 2254(b)(1)(B)(ii)”). At oral argument, Stroman’s counsel argued

that studies and state-court developments subsequent to Ruiz

authorize the court to depart from these established precedents.15

This court is bound by precedents that foreclose Stroman’s argument

under 28 U.S.C. § 2254(b)(1)(B)(ii). Grounds 2-6 of his amended

 

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16Respondent maintains that grounds 2 through 6 are barred by

the one-year limitations period contained in 28 U.S.C. § 2244(d).

The court need not decide whether these grounds are time-barred

because it has already concluded that they are unexhausted and

procedurally defaulted.

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petition are therefore unexhausted and procedurally barred.16

IV

In ground 7, Stroman seeks habeas relief based on the

contention that he was denied his right to effective assistance of

counsel when his trial counsel failed to challenge prospective

juror Janet Gurley (“Gurley”) for cause, or to use a peremptory

strike to remove her from the jury, thereby depriving him of a fair

and impartial jury.

A

Stroman maintains that, during voir dire, Gurley exhibited

strong opinions in favor of the death penalty, including this

belief: “I think if [a person killed] once there’s a probability of

doing it again.” Tr. 13:127. Stroman contends that his trial

counsel were constitutionally deficient because Gurley’s answers

clearly revealed a bias against him regarding imposition of the

death penalty. He posits that the error is structural and that

prejudice is presumed.

The state habeas court addressed Stroman’s claim regarding

Gurley in findings of fact and conclusions of law nos. 9-20. In

pertinent part, the court found that peremptory strikes are limited

in number and that the determination of which prospective jurors

 

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warrant being stricken is inherently strategic. State Hab. Find.

No. 13. It found that Stroman’s counsel could have accepted Gurley

as a juror for a number of legitimate reasons. State Hab. Find.

No. 14. The court then specifically analyzed parts of Gurley’s

juror questionnaire, finding that counsels’ decision to accept her

was reasonable in light of the totality of her voir dire

examination and the answers on the questionnaire. State Hab. Find.

No. 15. It found that the questionnaire responses provided solid

reasons for believing that Gurley would be a good juror for the

defense. According to the state habeas court, this data, combined

with what counsel observed during questioning, supported the

required presumption in favor of counsels’ approach to selecting

Gurley as a juror, and was clearly based on their reasoned judgment

as attorneys and on the facts before them. State Hab. Find. No.

16.

The state habeas court found and concluded, in relevant part,

that counsels’ decision not to challenge or strike Gurley was a

reasonable one, and well within the standards of professionalism

required by Strickland. State Hab. Find. No. 18. And it found and

concluded that the result of the proceeding would not have been

different but for his counsels’ decision not to strike or challenge

Gurley. State Hab. Find. No. 20.

Stroman maintains that the findings and conclusions are not

entitled to a presumption of correctness because they are purely

 

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17In his objections to the magistrate judge’s findings,

conclusions, and recommendation, Stroman maintains that the state

habeas court’s findings of fact and conclusions of law relevant to

grounds 7 and 8 are not entitled to a presumption of correctness

because the state court did not conduct a live evidentiary hearing.

Binding precedent, however, upholds the practice of conducting

paper hearings and further establishes that the application of the

AEDPA presumption of correctness does not depend upon whether a

full and fair hearing was conducted at the state level. See, e.g.,

Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004); Valdez, 274

F.3d at 949-51. 

- 22 -

speculative, lack factual support, and/or are contradicted by clear

and convincing evidence in the record. He contends that the state

habeas court’s findings that defense counsel made strategic or

reasonable decisions are not entitled to a presumption of

correctness because they lack an evidentiary foundation.17 And

Stroman posits that the state habeas court’s decision was contrary

to and an unreasonable application of Strickland.

B

“If a state court has already rejected an

ineffective-assistance claim, a federal court may grant habeas

relief if the decision was ‘contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.’” Yarborough

v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (quoting 28 U.S.C.

§ 2254(d)(1)). “Where, as here, the state court’s application of

governing federal law is challenged, it must be shown to be not

only erroneous, but objectively unreasonable.” Id. (citing cases).

“The clearly established federal law that sets the standard

 

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for ineffective assistance claims is [Strickland].” Catalan v.

Cockrell, 315 F.3d 491, 492 (5th Cir. 2002). Under the Strickland

test the following showing is necessary to demonstrate ineffective

assistance:

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced

the defense. This requires showing that

counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose

result is reliable. 

Strickland, 466 U.S. at 687. 

To establish ineffectiveness, a defendant must

show that counsel’s representation fell below

an objective standard of reasonableness. To

establish prejudice he 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.

Williams, 529 U.S. at 390-91 (citations and quotation marks

omitted) (quoting Strickland, 466 U.S. at 688, 694). If Stroman

fails to meet either prong of the Strickland test, the court need

not address the other component. See Strickland, 466 U.S. at 697;

Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997). (“Failure to

prove either deficient performance or actual prejudice is fatal to

an ineffective assistance claim.”). 

Courts “must indulge a strong presumption that counsel’s

 

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conduct falls within the wide range of reasonable professional

assistance[.]” Strickland, 466 U.S. at 689. Courts must “not fall

prey to ‘the distorting effect of hindsight’ but must be ‘highly

deferential’ to counsel’s performance.” Carter, 131 F.3d at 463

(quoting Strickland, 466 U.S. at 689-90). Moreover, when a

defendant seeks a writ of habeas corpus based on ineffective

assistance,

[i]t bears repeating that the test for federal

habeas purposes is not whether [petitioner]

made that showing. Instead, the test is

whether the state court’s decision——that

[petitioner] did not make the Stricklandshowing——was contrary to, or an unreasonable

application of, the standards, provided by the

clearly established federal law (Strickland),

for succeeding on his IAC claim.

Schaetzle, 343 F.3d at 444. 

 Accordingly, to succeed in this court on an ineffective

assistance claim, Stroman must at a minimum show that the state

habeas court’s decision was contrary to, or an unreasonable

application of, the standards provided by the clearly established

federal law (i.e., Strickland).

C

The court holds that the state habeas court’s decision that

the performance of Stroman’s counsel was not deficient is supported

by the record and is not contrary to, or an unreasonable

application of, Strickland. The court need not therefore address

the prejudice prong of the Strickland test.

 

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Gurley’s juror questionnaire contained several examples——cited

by the state habeas court, see State Hab. Find. No. 15——of

responses that Stroman’s counsel could reasonably have concluded

evinced that she would be favorable to the defense. She stated

that, although she favored the death penalty, she would “think long

and hard before imposing the death penalty[,] but if evidence is

sufficient to prove guilt I could follow instructions as issued by

the Court/Judge.” Id. (emphasis added) (quoting questionnaire

response). Gurley also indicated that she would carefully consider

the evidence. Circumstantial evidence would have to be “very

strong” for her to convict, and she could impose the death penalty

based solely on the facts of the crime, “[a]s long as circumstances

leave no room for doubt.” Id. (emphasis added) (quoting

questionnaire response). When Gurley responded to a question that

asked that she rate the importance of objectives of punishment, she

listed rehabilitation first, deterrence second, and punishment

third. Id.

Additionally, although Gurley did offer the opinion about

which Stroman complains——“I think if [a person killed] once there’s

a probability of doing it again,” Tr. 13:127——her other responses

placed this opinion in a context that supports the state habeas

court’s decision. The prosecutor continued his voir dire

examination of Gurley with examples “that may indicate otherwise.”

Id. at 128.

 

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Q. And that’s why we ask you, say, when

you find him guilty that’s only half the

story. You still haven’t heard basically

anything about that defendant in his

past. Maybe he’s never committed another

horrible crime before. May[be] he has no

criminal history whatsoever. Maybe

there’s just a reason that this is an

aberration in his behavior. And you say

guilty, yes; continuing threat, no.

So, could you follow the law and

could you make us show through the

evidence that he would actually be a

continuing threat? Or again, do you

think that if you found him guilty that

would always answer special issue number

one for you? And, you know, you just

tell me and I’ll accept your answer

either way, the way you honestly feel.

A. No. I’m not sure that if there was other

evidence about that individual that was

presented that I might even though he’s

guilty of that particular crime, I might

not think that he would always do that.

Q. So you’re willing to wait for all the

evidence to come in?

A. Right.

Q. And if the evidence after you hear all of

it says yes, beyond a reasonable doubt

he’s a continuing threat, you say yes.

And if the evidence is —— says otherwise,

you could say no. Is that right?

A. Correct. 

Id. at 128-129 (emphasis added). 

The prosecutor continued by examining the types of evidence

Gurley would use to answer special issue number one (continuing

threat), and the meaning of words used in that special issue, such

 

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as “probability,” “criminal acts of violence,” “society,” and any

other questions she might have of the prosecutor about special

issue number one. Id. at 131-33. The prosecutor and defense

counsel examined Gurley extensively on the punishment issues for

most of the 30-page record of her voir dire. Gurley repeated her

commitment to follow the law and consider the evidence presented in

the punishment phase. See id. at 134 and 140. And she

specifically rejected the idea that if she answered special issue

number one by finding that Stroman was a continuing threat, and she

would automatically answer special issue number two (mitigating

reasons for not imposing the death penalty) in favor of the

prosecution. See id. at 134.

When one of Stroman’s attorneys examined Gurley, he began by

focusing on special issue number two, attempting to gauge whether

Gurley would tend to reject the defense’s position on that special

issue if she had already found him guilty of capital murder and had

answered in response to special issue number one that he was a

continuing threat. See id. at 142-44. Gurley responded that she

did not know where she fit in and that “[i]t would depend on the

evidence.” Id. at 144. In answer to other extensive, detailed

questions posed by defense counsel, Gurley consistently responded

in ways that evinced her intention to keep an open mind and

consider the evidence before answering the punishment phase special

issues. See id. at 144, 146, 148, 149, and 150.

 

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Accordingly, the state habeas court’s decision that the

performance of Stroman’s trial counsel was not deficient is not

contrary to, or an unreasonable application of, Strickland.

Stroman’s ground 7 for habeas relief is denied.

V

In ground 8, Stroman contends that his trial counsel rendered

ineffective assistance by failing to object during the punishment

phase to prejudicial hearsay testimony, depriving him of his right

to confront and cross-examine material witnesses, in violation of

his rights under the Sixth and Fourteenth Amendments. 

A

The evidence that serves as the basis of Stroman’s complaint

constitutes two police reports and a psychological report.

Sergeant Kenneth Presley of the City of Plano Police Department

read to the jury from the narrative portion of an arrest report,

dated November 4, 1981, regarding an incident when Stroman was 12-

years old. See Tr. 19:31-33. Stroman was one of two boys who

threatened the victim by showing him a pair of nunchukas and asked

for money. See id. at 31. When the victim responded that he only

had a few pennies, the boy with Stroman struck the victim in the

jaw. See id. at 32 and 36. Detective Eric Weaver (“Detective

Weaver”), also with the Plano Police Department, read from an

arrest report concerning the unauthorized use of a motor vehicle by

Stroman and another boy that occurred on April 2, 1983, when

 

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18Respondent maintains in this court that this ground should

be denied as procedurally barred. For a state procedural default

to be adequate to bar federal review, the state procedural rule

- 29 -

Stroman was 13-years old. See id. at 41-42. At the conclusion of

Detective Weaver’s testimony, the prosecution offered State

Exhibits Nos. 54 and 55. Stroman’s trial counsel had no objection

to either exhibit. State Exhibit No. 54, which related to a May 2,

1983 incident about which Detective Weaver testified, had as an

attachment a psychological evaluation that was completed at that

time. The evaluation stated that, during an interview with

Stroman’s parents, they reported that he had been in repeated

trouble for the last few years and that his difficulties began when

he was approximately nine-years old.

Stroman complains that the jury heard inadmissible hearsay

about extraneous offenses and from the psychological report,

without the opportunity for his counsel to confront and crossexamine the witnesses. He posits that prejudice is presumed. And

he maintains that the state habeas court’s findings of fact and

conclusions of law are not entitled to a presumption of correctness

because they are speculative and conjectural, and lack evidentiary

support in the record. Stroman argues that the state habeas

court’s decision was contrary to, and an unreasonable application

of, Strickland.

After holding that this ground of his state application was

procedurally barred,18 the state habeas court concluded in the

 

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“must have been ‘firmly established and regularly followed’ by the

time as of which it is to be applied.” Ford v. Georgia, 498 U.S.

411, 424 (1991); see also, e.g., Busby v. Dretke, 359 F.3d 708,

718-19 (5th Cir. 2004). It does not appear that a state procedural

default for failure to raise an ineffective assistance of trial

counsel claim in the direct appeal was regularly followed and

sufficient to bar federal habeas review. Instead, the general

practice appears to have been that such claims were not to be

raised on direct appeal, where review was limited to the trial

record, but instead were to be presented in a habeas corpus

proceeding, where the record could be properly developed.

Discussing ineffective assistance of counsel claims, the TCCA has

reaffirmed “[a]s we have done many times before . . . that the

record on direct appeal is usually inadequate to address

ineffective assistance claims.” Roberts v. State, 220 S.W.3d 521,

533 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 128 S.Ct. 282

(2007). “Direct appeal is usually an inadequate vehicle for

raising such a claim because the record is generally undeveloped.”

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)

(citing Thompson v. State, 9 S.W.3d 808, 813-814 (Tex. Crim. App.

1999)). Accordingly, the court concludes that the state rule on

which respondent relies does not appear to have been firmly

established and regularly followed at the time of Stroman’s direct

appeal, and the rule is therefore insufficient to procedurally bar

federal habeas review of this ground of Stroman’s petition.

- 30 -

alternative that Stroman had failed to satisfy either prong of the

Strickland test. State Hab. Find. Nos. 160 and 163. The court

focused on the strategic and tactical nature of counsels’ decisions

not to object to the evidence but to use it to support Stroman’s

defensive theory at the punishment phase, and on those portions of

the record showing that his counsel reasonably decided for

strategic reasons not to object to this evidence. 

In the context of addressing Stroman’s ground three (that his

trial counsel were ineffective for failing to correct the

prosecutor’s alleged false statements about his 1981 juvenile

adjudication), the state habeas court found “that the most

 

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significant aspect of defense counsels’ mitigation theory at the

punishment phase was to show that [Stroman’s] deprived youth made

him worthy of mercy and [Stroman’s] wayward commission of criminal

offenses as a child was part of that defense.” State Hab. Find.

No. 117. Specifically addressing ground four (the claim, as here,

that his counsel were ineffective for failing to object to these

three matters), the state habeas court found, in pertinent part,

that the cited evidence supported trial counsel’s mitigation

strategy. See, e.g., State Hab. Find. Nos. 149, 151, and 154-157.

The court found, in pertinent part, that Stroman’s counsel sought

to use the offense reports about the two juvenile offenses to make

significant points about his background. See State Hab. Find. No.

151. It cited as an example that counsel used the crossexamination of Detective Weaver to highlight that Stroman “most

likely stole the car because he was running away from an abusive

home life for the eleventh time.” Id. And it found that, like the

1981 and 1983 police reports, the psychological report helped the

defensive theory during the punishment phase. State Hab. Find. No.

154. The court concluded that choosing not to object to the

psychological report “was within the broad range of acceptable

strategies available to defense counsel at trial.” State Hab.

Find. No. 155. It noted that, during closing argument, defense

counsel used the report to make a plea to the jury, that it was an

important part of the defense’s overall theory to show that

 

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Stroman’s problems were largely due to his troubled youth, see

State Hab. Find. No. 156, and that the report supported the

defensive theory. See State Hab. Find. No. 157. 

B

The court holds that the state habeas court’s decision that

the performance of Stroman’s counsel was not deficient is supported

by the record and is not contrary to, or an unreasonable

application of, Strickland. The court need not therefore address

the prejudice prong of the Strickland test.

As the state habeas court pointed out in its findings, and as

is apparent from the trial record, Stroman’s counsel adopted a

mitigation strategy of explaining why Stroman acted as he did and

of providing a mitigating context to his troubled youth and the

causes for it, such as the abusive and neglectful environment in

which he was raised by his parents. This was presented in support

of a case for mercy. In fact, in arguing that this same type of

evidence was available and should have been presented during the

guilt/innocence phase to show Stroman’s state of mind at the time

of the offense, Stroman recognized that this theory was pursued in

the punishment phase to show such mitigating factors as an

“untreated behavioral disorder.”

04-02-02 The punishment phase began. (RR vol.

19). Dr. Connell opined: All of “these forces

. . . acted on [Mr. Stroman] to cause him to

commit heinous acts of violence. Without the

combination of abuse and neglect, rejection,

untreated behavioral disorder, and the effects

 

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of drug addiction, it is unlikely that he

would have become a violent person who would

engage in such acts.” Exhibit B: Mitigation

Report of Mary Connell, Ed.D., ABPP, dated

4/2/02, p. 14.

Am. Pet. 91 (ellipsis and brackets in original; bold font and

italics omitted); see also id. at 40-41, 48-50, 59-60, 68-71, 75,

84, 95, 117, and 126 (asserting this type of evidence to show a

lack of mens rea).

Accordingly, the state habeas court’s decision that the

performance of Stroman’s trial counsel was not deficient is not

contrary to, or an unreasonable application of, Strickland.

Stroman’s ground 8 for habeas relief is denied.

VI

In ground 9, Stroman asserts that his rights under the Eighth

Amendment would be violated by the current method of execution used

in Texas because it violates the evolving standards of decency

reflected in the Eighth and Fourteenth Amendments. Stroman amended

this claim to address the impact of Baze v. Rees, 553 U.S. ___, 128

S.Ct. 1520 (2008), in which the Supreme Court held that Kentucky’s

use of the same three-drug protocol in lethal injections does not

offend the Eighth Amendment. This ground appears designed to urge

the Supreme Court to reconsider its ruling in Baze. Stroman has

not shown that he is entitled to relief under ground 9, and the

court denies habeas relief on this basis.

 

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VII

In various contexts, Stroman maintains that he is entitled to,

or that this court should conduct, an evidentiary hearing. “In

deciding whether to grant an evidentiary hearing, a federal court

must consider whether such a hearing could enable an applicant to

prove the petition's factual allegations, which, if true, would

entitle the applicant to federal habeas relief” under 28 U.S.C.

§ 2254(d). Schriro v. Landrigan, 550 U.S. 465, 474 (2007). In

making this determination, “the judge must review the answer, any

transcripts and records of state-court proceedings, and any

materials submitted under Rule 7 to determine whether an

evidentiary hearing is warranted.” 28 U.S.C. § 2254, Rule 8(a).

The decision to grant a hearing rests in the discretion of the

district court, unless a hearing is barred under 28 U.S.C.

§ 2254(e)(2) due to a petitioner’s failure to develop the factual

basis for the claim in state court proceedings. See Schriro, 550

U.S. at 468. 

The court holds that ground 1 is not presented as an

independent ground for habeas relief, and that related grounds 2

through 6 are unexhausted, procedurally barred, and that an

evidentiary hearing on such grounds is prohibited under 28 U.S.C.

§ 2254(e)(2) because they were not developed in the state court

proceedings. The court concludes that there is no need for an

evidentiary hearing of trial counsel’s reasons for not objecting to

 

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the juror forming the basis of the allegations of ground 7 because

the record affirmatively shows that the juror was not biased

against Stroman, nor is an evidentiary hearing necessary to

determine why trial counsel did not object to the hearsay evidence

in ground 8 because the record also shows trial counsel’s

mitigation strategy and how this evidence supported it. On both

grounds 7 and 8, the record undermines these claims and establishes

critical elements of these claims against Stroman, as set forth

above. Ground 9 fails to assert facts that would authorize relief

in light of Baze. Having carefully examined the pleadings and

record, the court concludes that no ground on which Stroman relies

warrants convening an evidentiary hearing, and all such requests

are denied.

* * *

Stroman’s amended habeas petition is denied, and this action

is dismissed with prejudice by judgment filed today.

SO ORDERED.

September 28, 2009.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

 

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