IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL LEWIS HOWARD §

§

Petitioner, §

§

VS. § 

§ NO. 3-05-CV-0614-G 

DOUGLAS DRETKE, Director § 

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Michael Lewis Howard, appearing pro se, has filed an application for writ of

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

be denied.

I.

Petitioner was convicted of assault on a public servant and sentenced to 30 years

confinement. His conviction and sentence were affirmed on direct appeal. Howard v. State, No.

05-99-02126-CR, 2001 WL 322808 (Tex. App.--Dallas, Apr. 4, 2001, pet. ref’d). Petitioner also

filed an application for state post-conviction relief. The application was denied without written

order. Ex parte Howard, No. 28,642-06 (Tex. Crim. App. Mar. 2, 2005). Having exhausted his state

remedies, petitioner now seeks federal habeas relief.

II.

In four grounds for relief, petitioner contends that: (1) he received ineffective assistance of

counsel; (2) the trial court erroneously admitted evidence of an unadjudicated extraneous offense;

 

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(3) the evidence was factually insufficient to support his conviction; and (4) his conviction was the

result of evidence obtained during an illegal search.

A.

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

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

Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may

grant habeas relief only if the state court adjudication:

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

determination of the facts in light of the evidence presented in the

State court proceeding. 

28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state

court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law

or if the state court decides a case differently than [the] Court has on a set of materially

indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d

389 (2000). An unreasonable application of clearly established federal law is one in which "the state

court identifies the correct governing legal principle from [the] Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523; see also Pondexter

v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated

differently, "a federal court may grant relief when a state court has misapplied a 'governing legal

principle' to 'a set of facts different from those of the case in which the principle was announced.'"

Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), quoting

Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). 

 

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With respect to mixed questions of fact and law, a federal habeas court must give deference

to state court findings unless they are "based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363

(5th Cir.), cert. denied, 121 S.Ct. 508 (2000). The resolution of factual issues by the state court is

presumptively correct and will not be disturbed unless the petitioner rebuts the presumption by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1).

B.

In his first ground for relief, petitioner complains that his attorney: (1) failed to investigate

the facts of the case and seek out potential witnesses; (2) advised petitioner not to testify at trial; (3)

did not request a jury instruction limiting the consideration of extraneous offense evidence; (4) never

obtained a ruling from the trial court on his pro se motion to suppress; (5) did not object to expert

testimony regarding a blood sample taken from petitioner; and (6) failed to suppress the blood

sample. Respondent counters that all but the first two claims are barred from federal habeas review

because they were never presented to the Texas Court of Criminal Appeals and any attempt to do

so at this juncture would be futile.

1.

A federal court may not consider the merits of a habeas claim if a state court has denied relief

due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120

L.Ed.2d 269 (1992). Only procedural rules that are firmly established and regularly followed by state

courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255,

262-63, 102 S.Ct. 2421, 2426, 72 L. Ed.2d 824 (1982). Article 11.07 of the Texas Code of Criminal

Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have

been, but were not, raised in his first habeas petition. See TEX. CODE CRIM. PROC. ANN. art. 11.07,

 

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1

 The statute provides, in relevant part, that:

(a) If a subsequent application for writ of habeas corpus is filed after final

disposition of an initial application challenging the same conviction, a court may

not consider the merits of or grant relief based on the subsequent application unless

the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have

been presented previously in an original application or in a previously considered

application filed under this article because the factual or legal basis for the claim

was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the

United States Constitution no rational juror could have found the applicant guilty

beyond a reasonable doubt . . .

TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a). 

2

 One of the claims raised by petitioner in his state writ was that the trial court violated his right to due process

by not ruling on his pro se motion to suppress certain evidence. (See St. Hab. Tr. at 6). However, petitioner never

argued that counsel was ineffective for failing to obtain a ruling on that motion. 

§ 4 (Vernon Supp. 2003).1 This statute constitutes an adequate state procedural bar for purposes of

federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603

(1995). The procedural bar doctrine also applies to unexhausted claims if the state court would likely

dismiss a successive habeas petition under article 11.07. See Coleman v. Thompson, 501 U.S. 722,

735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640 (1991) (procedural default occurs when prisoner

fails to exhaust available 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").

2.

 Although petitioner raised an ineffective assistance of counsel claim in his state writ, he

argued only that his attorney: (1) failed to seek out potential witnesses and investigate the facts of

the case; and (2) advised him not to testify at trial. Petitioner never sought relief on the other

grounds urged in his federal writ.2

 No explanation is offered to excuse this procedural default. The

 

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court finds that a Texas court, presented with these claims in a successive habeas petition, would

likely find them barred under article 11.07. Consequently, federal habeas relief is not proper.

Coleman, 111 S.Ct. at 2557 n.1; see also Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1997),

cert. denied, 118 S.Ct. 1845 (1998). 

 3.

Petitioner alleges that his attorney failed to investigate the facts of the case and seek out

potential witnesses. At issue is the testimony of a jail nurse and an FBI agent who allegedly would

have confirmed that petitioner suffered a wrist injury when the arresting officers refused to loosen

the handcuffs placed on him. According to petitioner, this evidence would have supported a defense

that he resisted arrest and kicked the officers only because the handcuffs were too tight. Petitioner

also criticizes counsel for advising him not to testify at trial.

a.

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

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

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

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

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

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

reasonableness. Id., 104 S.Ct. at 2064. The Fifth Circuit has described that standard as "requiring

that counsel research relevant facts and law, or make an informed decision that certain avenues will

not be fruitful." United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005), quoting United States

v. Conley, 349 F.3d 837, 841 (5th Cir. 2003). "A conscious and informed decision of trial tactics

 

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and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so

ill chosen that it permeates the entire trial with obvious unfairness." Green v. Johnson, 116 F.3d

1115, 1122 (5th Cir. 1997). Second, the petitioner must prove that he was prejudiced by his

attorney's substandard performance. Strickland, 104 S.Ct. at 2067. Prejudice results when "there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 2068; see also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct.

838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or

proceeding fundamentally unfair due to deficient performance of counsel). 

b.

Judged against this standard, petitioner cannot prove that his attorney was ineffective for

failing to call witnesses who may have testified that he sustained a wrist injury because his handcuffs

were too tight. The evidence adduced at trial shows that petitioner was arrested by Hutchins police

officers for speeding and investigation of driving while intoxicated. (SF-III at 16-28). When officers

searched petitioner, they found an empty holster in his right hip pocket. (Id. at 30; SF-IV at 83).

Petitioner was handcuffed and placed in the back seat of the squad car while the police searched his

vehicle. (SF-III at 30; SF-IV at 82-84). As a result of that search, a loaded .38 caliber revolver was

found underneath the driver's seat of his car. (SF-IV at 28-29, 85). Up to that point, petitioner

remained calm. (Id. at 33, 86). However, when one of the officers emptied bullets from the gun onto

the hood of the squad car, petitioner started rocking back and forth and banging his head against the

protective glass. (Id. at 33-34, 87-88). Petitioner continued this behavior for approximately five

minutes before the officers decided to further restrain him. (Id. at 34, 89-91). As two officers tried

to pull petitioner from the back seat of the squad car, petitioner resisted and all three men fell to the

ground. (Id. at 35-37, 91). Petitioner continued to struggle, kicking one of the officers in the face,

 

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shoulder, and jaw. (Id. at 38-39, 91-93). Once petitioner was finally subdued, he started shaking and

complained of difficulty breathing. (Id. at 40). Concerned that petitioner may have suffered a

seizure, the officers called for an ambulance. (Id. at 40-41, 97). Petitioner was treated at the scene

by paramedics before he was transported to jail. (Id. at 40).

At trial, defense counsel focused on whether petitioner knowingly and intentionally kicked

the police officers, rather than whether petitioner assaulted the officers because his handcuffs were

too tight. Counsel questioned the paramedic about petitioner's physical state and whether his

behavior might have been caused by a seizure. (SF-V at 24-28). He also argued this theory to the

jury during closing argument. (Id. at 42-47). On these facts, the state habeas court found that

petitioner "was in no way denied his right to effective assistance of counsel at trial." (St. Hab. Tr.

at 42). Petitioner has failed to rebut that finding or show that counsel was ineffective for pursuing

this defense. See Crane v. Johnson, 178 F.3d 309, 314 (5th Cir.), cert. denied, 120 S.Ct. 369 (1999)

(an informed decision based on trial strategy cannot be the basis for an ineffective assistance of

counsel claim).

Nor was counsel ineffective for advising petitioner not to testify at trial. Petitioner was a

twice convicted felon, with prior convictions for possession of a controlled substance and

unauthorized use of a motor vehicle. (See St. App. Tr. at 4). Had petitioner testified at trial, those

convictions could have been used for impeachment purposes. In light of his criminal record,

petitioner cannot demonstrate that the advice given by counsel was deficient. See Stovall v. Cockrell,

No. 3-00-CV-1407-P, 2003 WL 21750707 at *35 (N.D. Tex. Jul. 29, 2003), rec. adopted, 2003 WL

22289958 (N.D. Tex. Aug. 21, 2003) (counsel not ineffective for advising defendant with prior

criminal history not to testify at trial). 

 

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C.

Next, petitioner contends that the trial court erred in admitting evidence of the unadjudicated

extraneous offense of carrying a weapon. This claim fails for two reasons. First, the misapplication

of state law is not cognizable in a federal habeas proceeding unless the petitioner can establish that

the error deprived him of a fair trial. See Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir.), cert. denied,

107 S.Ct. 3278 (1987); Mattheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985), cert. dism'd, 106

S.Ct. 1798 (1986). Here, petitioner does not allege, much less prove, that the admission of this

extraneous offense evidence implicates due process or any other federal constitutional right. See

Saunders v. Cockrell, No. 3-02-CV-0229-D, 2002 WL 31156719 at *2 (N.D. Tex. Sept. 24, 2002),

citing Lucas v. Johnson, 132 F.3d 1069, 1082 (5th Cir.), cert. dism'd, 119 S.Ct. 4 (1998) (habeas

relief warranted only when erroneous admission of evidence played a "crucial, critical [and] highly

significant role" in trial).

Second, the state court determined that testimony regarding the gun found in petitioner's car

was "same transaction contextual evidence." Howard, 2001 WL 322808 at *2, citing Rodgers v.

State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Such evidence is admissible where, as here, two

legally separate offenses are so blended or closely interwoven that proof of all facts is necessary to

help the jury understand the charged offense. See Busby v. Dretke, 3-04-CV-0981-P, 2005 WL

1406049 at *3 (N.D. Tex. Jun. 14, 2005), rec. adopted, 2005 WL 1586115 (N.D. Tex. Jul. 5, 2005),

citing Johnson v. State, 510 S.W.2d 944, 948 (Tex. Crim. App. 1974). This ground for relief is

without merit and should be overruled.

D.

Petitioner also challenges the sufficiency of the evidence to support his conviction. More

particularly, petitioner argues that the evidence was factually insufficient to prove that he knowingly

 

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and intentionally kicked the officers or that the officers suffered bodily injury. 

Under Texas law, intermediate appellate courts have the authority to review fact questions

in criminal cases. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). This "factual

sufficiency" review of the evidence is broader than a "legal sufficiency" challenge under Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Instead of viewing the evidence in

the light most favorable to the prosecution and determining whether "any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt," a factual sufficiency

inquiry views all the evidence to determine whether the verdict "is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust." Pruitt v. Cockrell, No. 3-00-CV-1713-H,

2001 WL 1115339 at *13 (N.D. Tex. Sept. 14, 2001), quoting Clewis, 922 S.W.2d at 129. The power

of state appellate courts to review the factual sufficiency of the evidence derives from Texas statutory

and constitutional authority. Id. at *14, citing Clewis, 922 S.W.2d at 129-30, and Bigby v. State, 892

S.W.2d 864, 874-75 (Tex. Crim. App. 1994), cert. denied, 115 S.Ct. 2617 (1995). There is no

corresponding right of review under the United States Constitution. Id. Consequently, a claim based

on factually insufficient evidence does not implicate a federal constitutional right and is not

cognizable under 28 U.S.C. § 2254. See id. 

Here, petitioner claims that the evidence was factually insufficient to support his conviction.

He does not challenge the legal sufficiency of the evidence under Jackson. Therefore, petitioner is

not entitled to federal habeas relief on this ground.

E.

Finally, petitioner argues that the trial court erred in not ruling on his motion to suppress

evidence seized by the police during the search of his car.

 

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3

 The state court record contains several pro se motions filed by petitioner, including: (1) a motion to reduce

third-degree felony to a misdemeanor; (2) a motion to quash the enhancement count of the indictment; (3) a grievance

against his attorney; and (4) a motion in limine regarding prior convictions. (See St. App. Tr. at 7-16). However, there

is no indication that petitioner ever filed a motion to suppress.

A federal court may not grant habeas relief based on a Fourth Amendment violation where

the state has provided an opportunity for full and fair litigation of the issue. Stone v. Powell, 428 U.S.

465, 493-95, 96 S.Ct. 3037, 3052-53, 49 L.Ed.2d 1067 (1976); Williams v. Collins, 16 F.3d 626, 637

(5th Cir.), cert. denied, 115 S.Ct. 42 (1994). This rule applies to all claims arising under the Fourth

Amendment. See, e.g. Williams, 16 F.3d at 637 (search and seizure); Cardwell v. Taylor, 461 U.S.

571, 572, 103 S.Ct. 2015, 2016, 76 L.Ed.2d 333 (1983) (arrest). A petitioner must plead and prove

that the state court proceeding was inadequate in order to obtain post-conviction relief in federal

court. Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986). 

The court initially observes that the record does not contain any evidence that petitioner or

his attorney filed a motion to suppress, much less requested a hearing on the motion.3

 In any event,

petitioner was afforded a full and fair opportunity to litigate any search and seizure claims at trial and

on direct appeal. Absent new evidence to support such a claim that was not available at the time of

trial, petitioner is barred from seeking federal habeas relief on this ground. See Andrews v. Collins,

21 F.3d 612, 631 (5th Cir. 1994), cert. denied, 115 S.Ct. 908 (1995) (applying Stone bar in absence

of new facts that were not developed at trial); Williams, 16 F.3d at 637.

RECOMMENDATION

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

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

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

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file 

 

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written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: November 3, 2005. 

 

 

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