IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT JEAN HUDSON, §

Petitioner, §

§

V. §

§ No. 3:03-CV-01643-K

NATHANIEL QUARTERMAN, Director, § ECF

Texas Department of Criminal Justice § (Death Penalty Case)

Correctional Institutions Division, §

Respondent. §

MEMORANDUM OPINION AND ORDER DENYING 

PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Robert Jean Hudson, sentenced to death for capital murder, petitions the Court for

writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his conviction and sentence are

unconstitutional in several respects. The Court denies Hudson’s petition for writ of habeas corpus.

I. HISTORY OF THE CASE

A jury convicted Hudson of capital murder and his punishment was assessed at death by

lethal injection in the 165 Judicial District Court of Smith County, Texas. (Clerk’s Record (“CR”) th

at 32-35). On March 6, 2002, the Texas Court of Criminal Appeals affirmed both the conviction and

the death sentence in an unpublished opinion. Hudson v. State, No. 73,826 (Tex. Crim. App. March

6, 2002) (per curiam). Hudson did not petition the Supreme Court for a writ of certiorari. Hudson

filed an application for state post-conviction relief during the pendency of his state appeal. (Ex Parte

Hudson, Application No. 56,063-01, State Habeas Transcript (“SH Tr”) at 2). On May 23, 2002, the

trial court issued an order adopting the State’s proposed findings and denied Hudson’s application.

(SH Tr at 344). On July 2, 2003, the Court of Criminal Appeals issued an order adopting the trial

court’s recommendation. Ex Parte Hudson, No. 56,947-01 (Tex. Crim. App. 2003). On June 30,
2

2004, Hudson filed the instant action in federal court. (Doc. #17). Throughout the remainder of this

opinion, except as otherwise noted, the Court will refer to the “state habeas court” as a single

tribunal.

II. STANDARD OF REVIEW

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because Hudson filed the instant petition after its effective date, the Act applies to his petition. 

Title I of the AEDPA substantially changed the way federal courts handle habeas corpus

actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain

relief

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 State court proceeding.

“In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term

of art that refers to whether a court’s disposition of the case was substantive, as opposed to

procedural.” Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of

Hudson’s state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d

286, 288-89 (Tex. Crim. App. 1997) (holding that a denial, rather than a dismissal, signifies an

adjudication on the merits). The Texas Court of Criminal Appeals also considered the merits of
3

Hudson’s claims raised on direct appeal. Thus, the AEDPA standards enumerated in 28 U.S.C. §

2254(d) apply.

Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact.

Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established

Federal law, within the meaning of § 2254(d)(1), “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, 412-13 (2000).

With respect to the “unreasonable application” standard, Williams states that a writ must

issue “if the state court identifies the correct governing legal principle from [the] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413; accord Penry

v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies

Supreme Court precedent if it “unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or unreasonably refuses to extend that principle

to a new context where it should apply.” 529 U.S. at 407. “[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; accord Penry, 532 U.S. at 793.

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th

Cir. 2000). Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless

they were ‘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. 2000). The

resolution of factual issues by the state court is presumptively correct and will not be disturbed
4

unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1). The Supreme Court has held that, when claim was dismissed by a state court pursuant

to an independent and adequate state procedural rule, federal habeas review of that claim is barred

unless the prisoner can establish either cause for the default as well as actual prejudice as a result of

the alleged violation of federal law or that failure to consider the claims would result in a

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v.

Reed, 489 U.S. 255, 262 (1989). To satisfy the independent and adequate requirements, the

dismissal of a claim must “clearly and expressly” indicate that it rests on state grounds which bar

relief, and the bar must be strictly and regularly followed by state courts and applied to the majority

of similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001), citing Amos v. Scott, 61 F.3d

333, 338-39 (5th Cir. 1995).

Hudson urges this Court not to apply the presumption of correctness normally accorded the

state court’s findings of fact, and instead to analyze his claims under the de novo standard of review.

He claims that the state habeas court did not properly “adjudicate” his claims as required by 28

U.S.C. § 2254(d) because it adopted verbatim the State’s Proposed Findings of Facts and

Conclusions of Law without granting Hudson’s request for a hearing and without requiring

“‘affidavits, depositions and [or] interrogatories’ to resolve any of the factual allegations raised by

Hudson, as allowed by Texas law.” (Pet. Brief at 22). The Court finds no merit in Hudson’s

assertions on this point.

The presumption of correctness prescribed by 28 U.S.C. § 2254 (d) for federal courts

reviewing state habeas court findings of fact is not affected by whether the state habeas court elects

to hold oral hearing. Carter v. Johnson, 131 F.3d 452, 460 n .13 (5th Cir.1997); see also Trevino
5

v. Johnson, 168 F.3d 173, 180 (5th Cir.1999) (finding that the state habeas court’s adoption of the

prosecution’s proposed findings of fact and conclusions of law three hours after they were filed with

the court did not give rise to a claim for violation of petitioner’s due process rights); James v.

Collins, 987 F.2d 1116, 1122-23 (5th Cir.1993) (presumption of correctness is further strengthened

if the judge who presided at the petitioner’s trial issues the written findings). Accordingly, the Court

will apply the standard of deference prescribed by the AEDPA. 

III. FACTUAL BACKGROUND

The Court of Criminal Appeals recited the following factual background in its opinion on

direct appeal:

During the late-night hours of May 6, 1999, the appellant [Hudson] called his

ex-girlfriend Edith Kendrick and told her he was going to her apartment. Shortly

after midnight, he arrived at Kendrick’s second-floor, efficiency apartment and

knocked on her door. There was no answer. The appellant began yelling and kicked

in the door. Just inside the door were a couch and a bed. When the door opened, the

appellant saw Kendrick standing next to the bed and a man running from the couch

pulling up his pants. Kendrick moved in front of the appellant to keep him from

going after the man. 

According to the appellant, he grabbed a black-handled buck knife from the

bed and began swinging at Kendrick. When Kendrick’s eight-year-old son Colby got

between the appellant and his mother, the appellant pushed him toward the stairs and

followed him down, telling him to leave. The appellant then went back upstairs and

saw Kendrick lying on the balconywith her eyes open. Believing Kendrick dead, the

appellant walked away from the scene, dropping the knife along the way. As he was

leaving, the appellant realized he had Kendrick’s watch in his hand. He pocketed the

watch, speculating that he grabbed it during the fight. The appellant was arrested at

a nearby convenience store. 

After his arrest, the appellant gave the authorities a written statement about

these events. The appellant also noted in his statement that he never intended to hurt

Kendrick or Colby, but that “something came over [him]” when he got to the

apartment and Kendrick would not talk to him or try to work things out between

them. 
6

When police investigated the scene further, they noticed an open purse on the

blood-covered couch. Michael Spearman, the man who was in the apartment when

the appellant broke in, told the police that Kendrick’s purse, which had money and

a newly-purchased watch in it the evening before, had not been on the couch and that

no knife had been on the bed prior to appellant’s arrival. Spearman also told the

authorities that he was on Kendrick’s couch when he heard a loud banging door and

someone threatening to come in and kill them. The appellant then kicked in the door

and entered the apartment with a knife in his hand, at which time Kendrick told

Spearman to leave. Spearman went out a second exit and down to a pay telephone

where he called “911.” As Spearman was calling for help, Colby came running

outside and said that the appellant had killed his mother and tried to kill him, too.

Michael Munoz testified at trial that he witnessed the murder while sitting in

his car in the apartment parking lot. He told the jury that he saw Kendrick come

crashing out of her apartment onto the balcony, with the appellant following

immediately behind. The appellant grabbed Kendrick’s hair, pulled her backwards,

and stabbed her at least six times, raising his hand as high as he could each time.

When the appellant was processed at the jail, authorities removed a ladies’ wrist

watch from his pocket as well as about $275.00 which had blood on it.

Hudson, slip op. at 2-3 (footnotes omitted).

IV. ISSUES PRESENTED

Hudson claims as follows: (1) that his right to effective assistance of counsel was violated

by the failure of his trial counsel to investigate and present mitigation evidence at either phase of trial

(Claim #1) , (2) that the State’s failure to disclose favorable evidence to Hudson denied him effective

assistance of counsel and subjected him to cruel and unusual punishment (Claim #2), (3) that Hudson

was medicated against his will and was thus denied the effective assistance of counsel as well as

confrontation rights and due process (Claim #3), (4) that his trial counsel’s failure to object to the

State’s voir dire on parole laws denied him effective assistance of counsel (Claim #4), (5) that he

was denied effective assistance of counsel by his appellate counsel’s failure to raise the issue on

appeal that Hudson’s trial counsel had failed to object to the State’s voir dire on parole laws (Claim

#5), (6) that the trial court’s parole law instruction violated the Eighth and Fourteenth Amendments
7

(Claim #6) , (7) that Hudson’s appellate counsel denied him affective assistance of counsel by failing

to object on appeal that the trial court’s parole law instruction violated the Eighth Fourteenth

Amendments (Claim #7), (8) that the trial court’s jury instructions failed to define vague terms in

special issues, in violation of Hudson’s due process rights as well as his Eighth and Sixth

Amendment rights (Claim #8), that the Texas Due Process statute, which fails to inform jurors that

lack of a unanimous verdict on sentencing results in a life sentence is cruel and unusual punishment

and violates Hudson’s due process rights (Claim #9), (10) that the jury selection process did not

result in a representative cross section of the community (Claim #10), and (11) cumulative error

(Claim #11). Hudson also makes an alternative request for an evidentiary hearing.

V. EXAMINATION OF GROUNDS FOR RELIEF.

A. Ineffective Assistance of Counsel (Claim #1).

In his first ground for relief, Hudson claims that his Sixth Amendment right to effective

assistance of counsel was violated by his trial counsel’s failure to properly investigate and present

evidence favorable to Hudson during trial. (Pet. Brief at 13-22). Specifically, Hudson complains

that his trial counsel failed to call any witnesses on Hudson’s behalf during either phase of his trial

(guilt-innocence or punishment). (Pet. Brief at 13). 

At the punishment phase of Hudson’s trial, the State introduced two witnesses – a fingerprint

technician who introduced evidence of Hudson’s prior offenses (21 RR 76-81) and a woman worked

at the jail commissary who testified that she witnessed Hudson exposing himself and masturbating

in front of her while he was incarcerated pending his trial. (21 RR 81-87). Hudson’s defense

counsel cross examined both of the prosecution’s witnesses, but did not introduce any witnesses on

Hudson’s behalf. The record reflects that Hudson agreed with the decision not to offer any testimony
8

at the punishment phase. (21 RR 89-91). 

In his petition brief, Hudson argues that his trial counsel’s failure to investigate and to call

certain persons to testify on his behalf denied him effective assistance of counsel. The persons

identified by Hudson include two relatives who were present at his trial – Clyde Crawford, Hudson’s

half-brother, and Doris (Ruth) Walker, Hudson’s cousin (Pet. Brief at 13, Exh. C, D), as well as

Hudson’s father, Emmitt Williams, who was incarcerated during his trial (Pet. Brief at 13-14, Exh.

E), and finally, Lillie Walker, another relative of his, who Hudson claims was familiar with his

background but who was not contacted by his trial counsel during trial preparation. (Id., Exh. F).

Hudson admits that his trial counsel contacted Crawford and Walker, but complainsthat his

counsel did not properly interview them. (Id. at 14). According to Hudson, if his counsel had

interviewed them, these two witnesses would have provided “detailed knowledge Petitioner had a

close rather than estranged relationship right up to the point of her death,” and that such information

“would have added additional credibility to the position of Hudson’s counsel, that far from being a

cold calculated act, the murder of the victim occurred in a jealous rage.” (Id.). 

Hudson also states in his own affidavit that he began receiving mental health treatment for

anger control at an early age, and argues that the affidavits of Doris Walker, Lillie Walker and

Hudson’s father confirm this. (Id. at 15, Exh. G). Finally, Hudson also reports in his affidavit that

he had little contact with his father from a young age and that after being raised by his greatgrandparents until about the eighth grade, he then went to live with his mother “in a less stable home

environment.” (Id. at 15; Exh. G). Hudson argues that all of this evidence, taken together, would

have provided the jury with “a keen insight into Petitioner’s upbringing and background.” Hudson

fails, however, to indicate what sort of effect that insight would have on the jury’s ultimate decisions.
9

The Sixth Amendment to the United States Constitution provides criminal defendants a right

to effective assistance of counsel during trial. U.S. CONST. ART. VI. To successfully state a claim

of ineffective assistance of counsel under Supreme Court precedent, Hudson must demonstrate (1)

that his counsel’s performance was deficient and (2) that his counsel’s deficient performance

prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish

prejudice, Hudson must show “that there is a reasonable probability that, but for [his] counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is sufficient to undermine confidence in the outcome.” Id. at 694. If Hudson’s fails to

establish either prong of Strickland’s test, the Court must find that his counsel’s performance was

not below constitutional standards. Id. at 696. In analyzing Hudson’s claim, the Court must

“indulge a strong presumption that [Hudson’s] counsel’s conduct falls within the range of reasonable

assistance.” Id. at 689. 

On direct appeal, the state habeas court rejected Hudson’s claim, finding that his “[trial]

counsel’s decision not to present evidence at the guilt phase was [a] deliberate, reasonable trial

strategy,” and that Hudson “failed to sustain his burden to prove otherwise.” (SH Tr at 267, (#76)).

Examining the extrinsic evidence Hudson offered, the state habeas court found it “unpersuasive in

proving that his trial counsel were ineffective for choosing not to introduce evidence at the

punishment phase,” (Id. at 279 (#102)), noting that the record demonstrated that Hudson’s counsel’s

decision was “a strategic one” (Id. (#103)). See also id. at 280-81 (#104-105). The state habeas

court specifically noted that Hudson had agreed with his counsel’s decision not to call any witnesses

on his behalf, (id. at 279-281 (#102-105)) as well as the facts that two of the affiants Hudson relies

upon were incarcerated at the time they signed their affidavits and that all of the affiants identified
10

by Hudson were likely biased given their relationships to Petitioner. (SH Tr at 275 (#93)). The state

habeas court found that Hudson’s trial counsel was aware of the potential information available

from the affiants Hudson identifies but made the strategic decision not to introduce it during

Hudson’s trial, instead focusing on portraying Hudson’s crime against Kendrick as a crime of

passion. (Id. at 276-77 (#95), see also generally, 277-289). The state habeas court specifically

found that Hudson’s mitigation evidence was “minimal in its quality and volume” and that it did not

“present a sympathetic case for mitigating a death sentence.” (SH Tr at 292 (#135)). The state

habeas court concluded that the mitigation evidence actually indicated Hudson’s family life was

fairly stable during his youth. (SH Tr at 292 (#136)). 

The Court finds that the state habeas court’s conclusion that Hudson was not able to

demonstrate prejudice was not an unreasonable application of the Strickland standard. Hudson has

not shown prejudice because he has failed to establish a reasonable probability that, had his counsel

presented the testimony of the various family members mentioned, the result in the trial would have

been different. Hudson therefore is not entitled to any relief on his claim of ineffective assistance

of counsel, and his first claim for relief is therefore denied. 

B. Brady Claim (Claim #2). 

In Hudson’s second claim, he contends that the was denied his Sixth Amendment right to the

effective assistance of counsel and was subjected to cruel and unusual punishment in violation of

the Eighth, Sixth and Fourteenth Amendments as a result of the State’s failure to disclose favorable

evidence to him, in violation of the standards set forth in Brady v. Maryland, 373 U.S., 83 (1963).

(Pet. Brief at 23-25). Specifically, Hudson claims that a prosecution report which would have

“minimized the impact” of Hudson’s conviction for murder in 1987 was not made available to his
11

trial counsel or to his state writ counsel, but was only turned over to Hudson’s writ counsel as an

attachment to the State’s response to Hudson’s state writ. (Pet. Brief at 24).

Respondent contends that Hudson’ssecond claim is unexhausted because Hudson failed to

present it to the state courts, and therefore it is now procedurally barred. (Answer at 16-19). In the

alternative, Respondent argues that Hudson’s claim is foreclosed by Fifth Circuit precedent. (Id.).

The Court will first address the potential procedural bar to Hudson’s claim. 

Texas law precludes successive habeas claims except in narrow circumstances. See TEX.

CRIM. PROC. CODE ANN. art. 11.071 § 5 (Vernon Supp.2006). Under § 5, unless Hudson presents a

factual or legal basis for a claim that was previously unavailable or shows by a preponderance of the

evidence that, but for a violation of the United States Constitution, no rational juror would have

found for the State, Hudson is procedurally barred from returning to the Texas courts to exhaust his

claims. Id. Art. 11.071 § 5 of the Texas Code of Criminal Procedure provides, in part, that 

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

filing an initial application, 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 a timely initial application

or in a previously considered application filed under this

article or Article 11.07 because the factual or legal basis for

the claim was unavailable on the date the applicant filed the

previous application;

* * * 

(e) For purposes of Subsection (a)(1), a factual basis of a claim is

unavailable on or before a date described by Subsection (a)(1) if the

factual basis was not ascertainable through the exercise of reasonable

diligence on or before that date.
12

To satisfy this requirement, it is not enough to show that Hudson was ignorant of such claim,

or that it was not an issue in a prior hearing. See Ex parte McGinn, 54 S.W.3d 324, 332 (Tex. Crim.

App. 2000). Construing this requirement, the Texas Court of Criminal Appeals has stated

What the statute requires is not that the availability of facts be

“questionable.” It requires that the application contain specific facts

establishing that the current claim could not have been presented

previously in a timely initial application because the factual basis for

the claim was unavailable.

Id. at 333. Hudson has not satisfied this requirement. 

Hudson claims that the prosecution report was for the first time made available to Hudson’s

writ counsel in response to his state writ. (Pet. Brief at 24). But Hudson does not assert that his

counsel, at any stage in the proceedings, was unaware of the nature of Hudson’s participation in the

murder for which he was previously convicted, nor that his counsel was unaware of the prosecution

report. Hudson has not attached any declaration by his trial counsel or writ counsel referencing the

evidence which was allegedly kept from his attorneys. Moreover, Hudson provides no information

regarding his own knowledge of the facts relating to his previous conviction. There is no

information before this Court indicating that the allegedly suppressed information was not available

to Hudson or his attorneys at the time of his trial. Based on the allegations contained in his petition,

Hudson could not satisfy this exception and would be barred from making this claim in a successive

state habeas corpus petition. Therefore, he is also procedurally barred from proceeding with this

claim in federal court. See Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001) (citing Coleman

v. Thompson, 501 U.S. at 735 n.1). Hudson does not assert any other reason to excuse him from any

procedural default barring this claim from federal habeas corpus review. See Beazley, 242 F.3d at
13

264. (holding that failure to exhaust results on procedural default without demonstrated “cause” and

“prejudice.”). 

Accordingly, it appearsthat Hudson would be precluded byTexas law from returning to state

court to exhaust his remedies in a successive petition in state court. See Beazley, 242 F.3d at 264.

Thus, Hudson’s second claim for relief is unexhausted and procedurally barred. Out of an abundance

of caution, however, and because § 2254(b)(2) provides that a petitioner’s “application for a writ of

habeas corpus may be denied on the merits, notwithstanding [his failure] to exhaust the remedies

available in the courts ofthe State,” theCourt will also analyze Hudson’ssecond claim on the merits.

In Hudson’s second claim, he contends that he was denied his Sixth Amendment right to the

effective assistance of counsel by the State’s failure to disclose information regarding his prior

murder conviction, which, according to Hudson, tended to “cast considerable doubt on [his] true

guilt for [Hudson’s 1987 murder conviction] or, at the very least would have minimized his role in

the offense.” (Pet. Brief at 23-25). As mentioned previously, Hudson claims that this information

was not made available to his counsel until it was attached to the State’sresponse to Hudson’s state

Habeas writ. (Pet. Brief at 23). Hudson also claims, without further discussion, that the State was

in possession of information regarding medication Hudson was prescribed during his stay at the

Dallas County jail which would have shown that he “suffered from mental distress” and that this

information likewise was not provided to Hudson’s trial counsel by the prosecution. (Id.). 

Under Brady, it is the State’s duty to disclose all evidence favorable to a criminal defendant.

See Brady, 373 U.S. 83, 87; Edmond v. Collins, 8 F.3d 290, 293 (5th Cir.1993). Hudson, a habeas

petitioner seeking to establish a Brady violation before this Court, must prove that the evidence

allegedly suppressed by the prosecution was both favorable to him and also material to either the
14

guilt-innocence or punishment phase of his trial. Edmond, 8 F.3d at 293; United States v. Jackson,

978 F.2d 903, 912 (5th Cir.1992). Evidence is only material if the Court finds that there is a

reasonable probability that the outcome of Hudson’s trial would have been different if the allegedly

exculpatory material been disclosed by the State. United States v. Bagley, 473 U.S. 667, 682 (1985);

Andrews v. Collins, 21 F.3d 612, 626 (5th Cir.1994).

At the outset, the Court notes that Hudson has not established that the State suppressed the

evidence, which is the factual basis for his claim. Hudson does not allege that the evidence was not

available to him through means other than production by the State. The Fifth Circuit has held that

“evidence is not ‘suppressed’ if the defendant ‘knows or should know of the essential facts that

would enable him to take advantage of it.” United States v. Runyan, 290 F.3d 222, 246 (5th Cir.

2002). During Hudson’s trial, his defense counsel alluded to his’s lesser role in the previous murder

for which he was convicted, commenting on his short five year sentence. (SH Tr at 310 (#204), 312

(#213)). Moreover, the trial court specifically noted that Hudson’s jail records reference his

conviction for “driving murderer from scene.” (SH Tr at 310 (#203)). Hudson also makes reference

to a second Brady claim pertaining to his medication. (Pet. Brief at 23). In its findings, the state

habeas court specifically found that Hudson voluntarily took medication and that he informed his

attorneys of that fact. (SH Tr at 304 (#181-84)). Because Hudson has not shown that the

prosecution kept exculpatory information from him that was not available to him through other

means through the exercise of reasonable diligence, his claim under Brady fails. Kutzner v. Cockrell,

303 F.3d 333, 336 (5th Cir. 2002) (citations omitted) (“When evidence is equally available to both

the defense and the prosecution, the defendant must bear the responsibility of failing to conduct a

diligent investigation.”). 
15

Even if Hudson had proven that the prosecution committed a Brady violation, which he has

not, his claim nevertheless fails because Hudson has not and cannot demonstrate that the allegedly

suppressed information was material to either his guilt or innocence. First, regarding the allegations

of suppressed evidence regarding Hudson’s mental duress, Hudson has failed to even allege facts

in support of that claim. Second, regarding the allegedly suppressed prosecution report, Hudson has

failed to demonstrate how the State’s failure to turn over a report regarding Hudson’s role in the

murder for which Hudson himself was previously convicted is material to either stage of his trial for

the murder of Ms. Kendrick. See United States v. Agurs, 427 U.S. 97, 109-10 (1976) (noting that

there is “‘no constitutional requirement that the prosecution make a complete and detailed

accounting to the defense of all police investigatory work on a case.”) (citing Moore v. Illinois, 408

U.S. 786, 795 (1972)). Hudson has introduced no evidence of materiality to support his Brady claim.

Accordingly, Hudson’s second claim for relief is denied on the merits. See, e.g. Barnard v. Collins,

958 F.2d 634, 642 n. 11 (5th Cir.1992). 

C. Involuntary Medication Claim (Claim #3).

In Hudson’s third claim for relief, he contends that he was deprived of effective assistance

of counsel and denied his confrontation rights as well as due process of law in violation of the Sixth

and Fourteenth Amendments by the administration of medication to him by the Dallas County

Sheriff’s Department during the time his period of incarceration before and during his trial. (Pet.

Brief at 26-27, Pet. Exh. G, H). Hudson argues that “[s]ince the drugs administered to [him] were

prescribed by agents of the State of Texas out of perceived medical necessity they were, in effect,

administered involuntarily” and that “due process forbids the state from medicating a criminal

defendant involuntarily absent a showing that the undesired medication is necessary and medically
16

appropriate.” (Id. (citing Riggins v. Nevada, 504 U.S. 127 (1992)). Hudson further claims that he

was deprived of his right to be present at his own trial, relying upon Illinois v. Allen, 397 U.S. 337,

338 (1970) for the proposition that “[t]he principal value served by a criminal defendant’s presence

during his trial is his ability to give advice and suggestions during the course of the trial and to be

sure that his attorney presents a vigorous defense.” (Pet. Brief at 26-27). 

In Riggins, the Supreme Court held that held that the trial court had erred in ordering that the

defendant be administered antipsychotic drugs during his trial over his objection without first making

factual findings that (1) there were no less intrusive alternatives available, (2) that the medication

administered by the state was medically appropriate, and (3) that the medication was essential for

the sake of defendant’s safety or the safety of others. Riggins, 504 U.S. 127, 135-36 (1992). Hudson

claims that the State’s administration of medication to Hudson violated his due process rights under

Riggins. Respondent contends that Hudson’s claims are meritless because he has failed to establish

either that he was forced to take any medication against his will or that the medications he took

caused him any harm. The Court agrees. 

First, the Court agrees with Respondent that it is questionable whether involuntary

medication is even cognizable in the habeas context. (Answer at 23-24). Riggins, the case Hudson

relies upon for this point, was not a habeas case, but rather a direct appeal. Riggins, 504 U.S. 127

(1992). The Fifth Circuit in Richardson v. Johnson, 256 F.3d 257 (5th Cir. 2001) analyzed a claim

brought by a death row inmate for the first time in a successive petition that he was incompetent to

be executed and that he was involuntarily medicated by the state for the purpose of being executed.

The Circuit court recognized that there were “several difficulties” with the “petitioner’s claim of

involuntary medication, including whether it is cognizable in habeas.” Id. at 259. In denying the
17

petitioner’s request for certificate of appealability and request for application for stay of execution,

the court noted that the state habeas court had previously found that the petitioner had made no

showing of involuntary medication (or that medication was given for the purpose of making the

petitioner competent for execution). Although Hudson brings his claims in a different context, like

the claims of the petitioner in Richardson, Hudson’s have “no factual legs.” Id. Hudson has not

demonstrated that he was involuntarily medicated, nor does he offer any explanation of how he was

affected by the administration of the medication by the state. 

The state habeas court specifically considered and rejected Hudson’s involuntary medication

claim. (SH Tr at 313-325 (#219-69)). In analyzing Hudson’s involuntary medication claim, the state

habeas court noted that it was Hudson who prompted the state to begin medicating him when he

initiated treatment by “complain[ing] to a jail psychiatrist that he was depressed and having trouble

sleeping.” (Id. at 314 (#221-22) (citing Applicant’s Writ Exh. A at 2, 10)). Considering Hudson’s

claims that the medications made him sleepy during his voir dire and trial (Applicant’s Writ Exh.

G at 4), the state habeas court concluded that Hudson offered “‘no extrinsic evidence’ of his lethargy

or inattentiveness during voir dire or trial.” (SH Tr at 318 (#237-38). After reviewing Hudson’s

psychiatric records dated August 24, 1999, the state habeas court found that the notation “All Meds

KOP” in Hudson’s records indicated that his medications were “kept on person” – meaning that he

was medicating himself while in jail and thus certainly “not being made to ingest antidepressant

drugs against his will.” (SH Tr at 315-16 (#227)). The state habeas court further found that Hudson

had not tendered “any evidence that he made the trial court aware of his desire to discontinue

medication, manifested such a desire to jail personnel, or took any other affirmative steps to end his

treatment.” (SH Tr at 316 (#228)). The court found that because he could not demonstrate that he
18

was medicated against his will, Hudson was not entitled to relief under Riggins. (SH Tr at 314

(#220)).

Separately, the state habeas court addressed Hudson’s claim under Illinois v. Allen regarding

his confrontation rights, the state habeas court made specific factual findings that Hudson “was not

only aware of what was going on but was also able to assist his counsel and provide input for his

defense” (SH Tr at 323 (#258)), but that he was “present and legally competent throughout the trial

and voir dire proceedings.” (SH Tr at 322 (#266)). 

Hudson has not offered any evidence controverting the findings of the state habeas court, but

has merely asserted that the medications were “in effect” involuntarily administered because they

were given to him by the state while he was in state custody. (Pet. Brief at 26). The state habeas

court’s findings regarding the voluntary nature of Hudson’s medication as well as the effect of the

medication upon his person appear correct from the record and have not been shown otherwise. The

state habeas court’s denial of this claim was neither unreasonable nor contrary to Supreme Court

precedent. Accordingly, Hudson’s third claim for relief is denied.

D. Claims Regarding Parole Law Comments and Instructions

 (Claims #4, #5, #6 and #7).

Next, in four related claims, Hudson contends that the prosecution violated several of

Hudson’s Constitutional rights by commenting to and instructing venire persons as well as jurors

regarding Texas state parole laws and the possibility of changes in the laws. (Pet. Brief at 28-53).

Specifically, Hudson claims (1) that he was denied affective assistance of counsel when his trial

counsel failed to object to the State’s voir dire on parole laws (Claim #4), (2) that he was denied

affective assistance of counsel when his appellate counsel failed to raise the issue identified in

Hudson’s fourth claim on direct appeal (Claim #5), (3) that the state’s instructions to jurors that the
19

forty year minimum may not apply to Hudson in the future because parole laws might change

violated Hudson’s rights under the Eighth and Fourteenth Amendments (Claim #6), and finally (4)

that Hudson’s appellate counsel’s failure to raise the issue identified in claim six on appeal denied

Hudson of affective assistance of counsel, depriving him of his Eighth and Fourteenth Amendment

rights to such a degree that fundamental error occurred (Claim #7). 

In his answer brief, Respondent contends that each of each of Hudson’s claims 4-7 lacks

merit because these claims are foreclosed by precedent and because the prosecutor and the trial court

correctly stated the law in speaking to and instructing the jury. The Court agrees. As discussed

previously, Hudson must meet the standards set forth in Strickland before he is able to demonstrate

that his trial counsel was ineffective. 

The Court will first address Hudson’s claims four and five, that he was denied affective

assistance of counsel when his trial counsel failed to object to the State’s voir dire on parole laws

(Claim #4) and that he was denied affective assistance of counsel when his appellate counsel failed

to raise the issue identified in Hudson’s fourth claim on direct appeal (Claim #5). As set forth in

Hudson’s petition brief in pages 28-53, he complains about the State’s instructions to jurors

regarding the mutability of parole laws. Hudson maintains that the state prosecutor “went far beyond

explaining the applicable law, and far beyond attempting to determine whether the venire members

could follow the law,” when it “stated as a fact to twenty-three venire persons, nine of whom became

jurors, that one of the reasons the trial court would instruct the jurors to disregard the 40-year

minimum is that the Legislature could at any time change the law, thereby making the 40-year

minimum inapplicable to Hudson.” (Pet. Brief at 45).
20

Hudson asserts that his case may be reversed for ineffective assistance of counsel because

his counsel failed to object to statements by the State which argued contrary to the law and invited

jurors to disregard the law. Id. (relying upon Burton v. State, No. 73,204 (Tex. Crim. App. Oct. 25,

2000) (unpublished opinion). He argues that this is significant because nine members of his jury

deliberated after the State “encouraged” them to “pretend that the forty-year minimum sentence was

meaningless.” (Pet. Brief at 45). Hudson asserts that these nine people “could have believed that

society would not adequately be protected from Hudson because during his service of a life sentence

the law applicable to Hudson might change and allow him to be released before forty years.” (Id.).

Hudson argues that his trial counsel’s “failure to object to the erroneous voir dire was not due

to lack of awareness of the impropriety of the prosecutors’ remarks, but rather due to failure to make

timely objection,” and points to his counsel’s objection made as a “motion in limine” during voir

dire. (Pet. Brief at 46-47). The state habeas court, commented, however, on the fact that the trial

court understood counsel’s objection and treated the objection as an objection to the line of

questioning, regardless of the manner in which the objection was characterized. (SH Tr at 254-55

(#32-36)). 

In reviewing these claims, the state habeas court specifically found that “the State established

with each juror that the forty-year minimum period of incarceration for a life sentence would apply

in this case,” (SH Tr at 249 (#11)) commenting that “although the State told the jurors that the law

may ‘change,’ except for one isolated comment to one juror, they did not say how the law might

change and did not tell the jurors that it would change in a way that would allow earlier release on

parole. In no case did the State invite the jury to speculate on the matter.” (Id. (#12)). Ultimately,

the state habeas court denied Hudson’s ineffective assistance of counsel claim, finding that Hudson
21

had failed to meet the first prong of Strickland, which required that Hudson demonstrate deficient

performance by his counsel in failing to object to the prosecution's parole remarks. (SH Tr at 255

(#32-36)). 

A federal court may only grant habeas relief where a state court has already rejected an

ineffective-assistance claim if the state court’s decision was objectively unreasonable, that is,

‘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)). 

At the outset, the Court notes that each of Hudson’s claims for relief 4-8 is based on the

premise that Hudson’s trial counsel was ineffective for failing to object to conduct that he contends

violated Texas law – thus the crux of Hudson’s claims rests on his assertion that the State’s

comments to the jurors violated Texas law. (Pet. Brief at 45-46). In order to prevail on claims 4-7,

Hudson must demonstrate that the state habeas court's decision that he did not satisfy the first prong

of Strickland was contrary to, or an unreasonable application of, the standards provided by the clearly

established federal law. But first Hudson must establish that his trial counsel’s objections were

meritorious under Texas law. His trial counsel’s objections must have been sustainable had they

been properly made. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir.1998) (holding that

counsel’s failure to make a frivolous objection is not unreasonable. Hudson has not and cannot meet

this requirement. Accordingly, Hudson’s fourth claim for relief is denied. 

Hudson’s fifth claim for relief is intertwined with the fourth and thus likewise fails. In his

fifth claim for relief, he complains that he was denied affective assistance of counsel when his

appellate counsel failed to raise the issue identified in Hudson’s fourth claim on direct appeal. As
22

discussed previously, Hudson must first satisfy the two-pronged test set forth in Strickland. 466 U.S.

at 677. Just as his trial counsel was not unreasonable for failing to lodge a frivolous objection, his

appellate counsel was not ineffective for failing to raise an issue on appeal if that issue has not been

shown to have merit. See Smith v. Robbins, 528 U.S. 259, 286 (2000) (applying Strickland test to

claims for ineffective assistance of appellate counsel). Thus Hudson cannot meet the standards set

forth in Strickland to demonstrate that his appellate counsel was ineffective for failing to raise this

point of error, and accordingly, Hudson’s claim five is denied.

In his sixth claim for relief, Hudson contends that the prosecution’s statements regarding the

parole laws deprived him of his rights under the Eighth and Fourteenth Amendments, resulting in

fundamental error. Specifically, Hudson cites the prosecution’s comments to twenty-three venire

persons, nine of whom ultimately served as jurors in his case. Relying on Simmons v. South

Carolina, 512 U.S. 154 (1994) (plurality opinion), Hudson argues that “fundamental fairness and

the avoidance of cruel and unusual punishment dictates that jurors must consider and give weight

to mitigating circumstances” (Pet. Brief at 51), and that his Fourteenth Amendment due process

rights require specifically that “the jury be apprised accurately of the minimum length of time a

defendant can be expected to be absent from society.” (Pet. Brief at 51) (citing Simmons at 163-164).

Hudson claims that “[t]he Court’s instructions to the jury are effectively sabotaged when the State

is permitted to undermine such instructions by representing to the jury that the minimum

confinement mandated by law may not apply” to Hudson in future. (Pet. Brief at 51) (citing

Valencia v. State, 946 S.W.2d 81 (Tex. Crim. App. 1997). 

In essence, Hudson contends that Simmons mandates that the actual duration of the

defendant’s period of incarceration is necessarily relevant to the jury’s determination of future
23

dangerousness; thus the State cannot be allowed to suggest that the 40-year minimum may never

apply if Hudson received a life sentence.

During a lengthy voir dire explanation, the prosecution mentioned, inter alia, that the fortyyear minimum Hudson would have to serve if given a life sentence was subject to change by the

legislature. See generally, (CR at 17-32). The prosecution also instructed the jurors that they could

not “compute or come up with when [Hudson] might get out” in answering the special issues

because the length of time he may serve was in the province of the Board of Pardons & Paroles. (CR

at 28). 

Hudson asserts that “because the prosecutor’s statements to juror’s [sic] undermined the high

degree of reliability required in death penalty cases, [Hudson] was deprived of ‘a fair and impartial

trial’” in violation of his Eighth and Fourteenth Amendment rights as set forth by the Supreme Court

in Simmons. The Supreme Court in Simmons, did not address the Eighth Amendment issue,

however, and only reached the issue of the due process clause of the Fourteenth Amendment. Id.

at 162 n. 4.

The state habeas court specifically rejected the factual basis of Hudson’s argument, finding

that the prosecution’s statements that parole law might change did not undermined the stated

40-year minimum. (SH Tr at 249 (#13)). The court specifically found that the State did not misstate

the law when it commented that parole laws could change (Id. at 250 (#14). In a detailed analysis

of the prosecution’s comments and applicable state law, the state habeas court found that Hudson’s

claims were without merit. (SH Tr at 249-264). The court specifically noted that Simmons did not

apply to Hudson’s case because Simmons applies solelyto defendants who are not eligible for parole,

citing Ramdass v. Angelone, 530 U.S. 156 (2000) (plurality opinion), in which the Supreme Court
24

refused to extend Simmons’ rationale to cases such as Hudson’s, where the defendant would be

eligible for parole. (SH Tr at 250 (#16-17)).

Importantly, Texas law on parole eligibility in cases such as Hudson’s changed in September

2005. Effective September 1 of that year, any defendant found guilty of a capital felony in a case

in which the prosecution seeks the death penalty is no longer entitled under Texas law to parole, if

given a life sentence. See TEX.PENAL CODE ANN. § 12.31(a) (Vernon Supp.2005). The Texas Code

of Criminal Procedure was also amended to require courts to charge the jury in capital cases “that

a defendant sentenced to confinement for life without parole under this article is ineligible for release

from the department on parole.” Id.. See TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(2)(B)

(Vernon Supp. 2005).

The Court must presume that the factual findings of the state habeas court are correct, and

Hudson may only overcome this presumption with clear and convincing evidence. See, e.g.,

Summers, 431 F.3d at 868. Hudson has not meet this burden. Moreover, even if Hudson had met

his burden of demonstrating clear error on the factual basis of his claim, the Court finds that the state

habeas court did not unreasonably apply clearly established federal Supreme Court law in holding

that Simmons does not apply in the instant case, in which Hudson would have been eligible for parole

if given a life sentence, the Court finds that the state habeas court did not. Hudson’s sixth claim for

relief is therefore denied.

In his seventh claim for relief, Hudson claims that his appellate counsel’s failure to raise the

issue identified in claim six on appeal denied Hudson of effective assistance of counsel, depriving

him of his Eighth and Fourteenth Amendment rights to such a degree that fundamental error

occurred. As discussed previously in analyzing Hudson’s fifth claim, Hudson must first satisfy the
25

two-pronged test set forth in Strickland. Again, just as his trial counsel was not unreasonable for

failing to lodge a frivolous objection, Hudson’s appellate counsel was not ineffective for failing to

raise an issue on appeal if that issue has not been shown to have merit. Smith, 528 U.S. at 286. The

Court has found that all of Hudson’s claims regarding the prosecution’s statements to the potential

jurors regarding potential changes in parole laws and their affect on Hudson lack merit. Thus

Hudson cannot meet the standards set forth in Strickland to demonstrate that his appellate counsel

was ineffective for failing to raise this point of error, and accordingly, Hudson’s claim seven is

denied.

E. Claims Regarding Allegedly Vague Terms in the Jury Charge (Claim #8).

Hudson’s eighth claim alleges that he is entitled to habeas relief because the trial court’s jury

instructions at the punishment phase contained unconstitutionally vague terms in the special issues,

in violation of his Sixth, Eighth, and Fourteenth Amendment rights. Hudson acknowledges that at

the conclusion of the punishment phase of his trial, the trial court submitted to the jury the special

issues statutorily mandated by the Texas Code of Criminal Procedure.

 The special issues included:

ISSUE NUMBER ONE: Do you find from the evidence beyond a reasonable doubt that

there is a probability that the defendant would commit criminal acts of violence that would

constitute a continuing threat to society?

ISSUE NUMBER TWO: Do you find, taking into consideration all of the evidence,

including the circumstances of the offense, the defendant's character and background, and

the personal moral culpability of the defendant that there is a sufficient mitigating

circumstance or circumstances to warrant that a sentence of life imprisonment rather than a

death sentence be imposed?

CR at 29-31; see TEX. CODE CRIM. PROC. ANN. art. 37.071 §§ 2(b)(1), (e)(1) (Vernon 1981 &

Supp.2005).
26

Hudson claims that because the jury did not receive specific instructions regarding the

meaning of the terms “probability”, “criminal acts of violence” or “threat to society,” “the trial court

failed to charge the jury in a constitutionally adequate manner so that its determination are rationally

reviewable.” (Pet. Brief at 55). According to Hudson, the special issues functioned as aggravating

circumstances because they “circumscribe[d] the class of persons eligible for the death penalty.”

(Pet. Brief at 56) (quoting Zant v. Stephens, 462 U.S. 862, 878 (1983)). Hudson relies upon the U.S.

Supreme Court's decision in Maynard v. Cartwright, 486 U.S. 356 (1988) for the proposition that

a death sentence may not be imposed using a vaguely defined aggravating factor unless that factor

is accompanied by “a valid limiting construction, thereby providing the sentencer specific and

detailed guidance concerning its scope.” (Pet. Brief at 56). Because the terms Hudson identifies do

not, according to him, have a “common or uniform meaning,” they “did not provide the jury any

uniform guidance in how to apply terms crucial to the decision to impose the ultimate sentence.”

(Pet. Brief at 57-58) as required by the federal precedent set by the Supreme Court in Maynard v.

Cartwright.

The U.S. Supreme Court has distinguished the eligibility phase of the capital punishment

decision-making process from the selection phase. See Tuilaepa v. California, 512 U.S. 967, 971-73

(1994). In Tuilaepa, the Court explaining that during the eligibility phase, the trier of fact must both

“convict the defendant of murder” and must then also “find one ‘aggravating circumstance’ (or its

equivalent) at either the guilt or penalty phase.” Id. As the Tuilaepa Court explained, after the jury

determines that the defendant falls within the category of those eligible for capital punishment, the

jury then considers a number of factors to determine the appropriate punishment. Id. at 979 (citations

omitted). In Buchanan v. Angelone, 522 U.S. 269, 276 (1998), the Supreme Court specifically noted
27

that its previous decisions “suggest that complete jury discretion is constitutionally permissible.”

Regarding the specific terms Hudson complains of, the Fifth Circuit has repeatedly found that they

are not unconstitutionally vague and that their meaning may be readily understood. See, e.g., Woods

v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996); James v. Collins, 987 F.2d 1116, 1119-20 (5th

Cir. 1993); Nethery v. Collins, 993 F.2d 1154, 1162 (5th Cir. 1993). 

Hudson raised this issue in his direct appeal (Direct Appeal Brief at 113-17), and it was

rejected by the Court of Criminal Appeals. Hudson, No. 73,826, slip op. at 21. Given the long line

of Fifth Circuit precedents supporting this decision, it cannot be said that this decision denying this

claim for relief is contrary to clearly established federal law. Accordingly, this claim is without

merit, and it is denied.

F. Texas Death Penalty Scheme Claim (Claim #9).

Hudson next alleges in his ninth claim that the trial court’s instructions to the jury at the

punishment phase of his trial was unconstitutional because, in conformity with the Texas Code of

Criminal Procedure, the court’s instructions did not inform jurors that their failure to reach a

unanimous verdict on punishment would result in a life sentence, violating Hudson’s Eighth and

Fourteenth Amendment rights. Following the punishment phase of Hudson’s trial, the trial court

instructed the jury in accordance with TEX. CODE CRIM. PROC. ANN. art. 37.071 §§ 2(d)(2), (f)(2)

((Vernon 1981 & Supp.2005), which forbids the trial court, as well as the parties, counsel or any

other person from informing the jury that their failure to reach a verdict results in a life sentence. 

The jurors in Hudson’s case were required to answer two special issues pertaining to future

dangerousness and to mitigation. The jurors were instructed that they could not answer the future

dangerousness issue “yes” or the mitigation issue “no” unless all twelve jurors were unanimous in
28

that decision. They also were instructed that they could not answer the future dangerousness special

issue “no” or the mitigation special issue “yes,” unless at least ten jurors agreed with that answer,

which would then result in a life sentence. (CR at 25). This is commonly known as the “12-10" rule.

However, under Texas state law, if the jury fails to reach a decision regarding either special issue in

a capital murder case, the defendant will receive a life sentence. By law, none of the parties are

permitted to inform the jury this result should the jury fail to reach a verdict. TEX.CODE CRIM.PROC.

ANN. art 37.071 § 2(a)(1), (g) (Vernon 1993). 

Hudson argues that this law “in effect, spar[ing] the life of the accused,” confuses jurors by

failing to inform them that their answers to the verdict form can result in a life sentence in one of two

ways – either by answering the special issues in a manner that results in a life sentence or by failing

to reach a verdict at all. (Pet. Brief at 60). Hudson claims that this law violates the Eighth

Amendment principles as set forth by the U.S. Supreme Court in Mills v. Maryland, 486 U.S. 367

(1988) by “leaving reasonable jurors to believe that their individual vote in favor of returning a life

sentence based on particular mitigating factors is worthless unless some threshold number of jurors

agree that particular mitigating factors exist.” (Pet Brief at 60) (citing Mills at 374). 

Hudson also cites to Lowenfield v. Phelps, 484 U.S. 231, 239-40 (1988), without further

explanation. The Lowenfield citation Hudson relies upon discusses whether a supplemental jury

instruction was coercive. But no supplemental jury instruction was given at Hudson’s trial and

Hudson gives no other reason for his citation, and so the Court declines to consider this citation

further. 

Hudson argues that “[u]nless jurors are informed of the result of a deadlock in such a

situation, the risk that one or more jurors will give a ‘majority rules’ mentality is too great under the
29

Eighth Amendment, particularly in a capital case.” (Pet. Brief at 61). Hudson relies on Kubat v.

Thierot, 867 F.2d 351, 369-73 (7th Cir.) for the proposition that not informing jurors of the effect

of one juror’s vote results in “a substantial probability that a juror might have been precluded from

voting for mercy because of a mistaken belief that the sufficiency of mitigating factors must be

shown.” (Pet. Brief at 61). 

The state habeas court rejected Hudson’s claim. Distinguishing Mills, the court found that

Hudson had not demonstrated that the Texas rule against informing jurors of the effect of a

deadlocked jury was unconstitutional, and found that Hudson’s due process rights under the Eighth

Amendment had not been violated . (SH Tr at 334-35 (#305-310)). This Court finds that the state

habeas court’s application of Supreme Court precedent was not unreasonable.

In Jones v. United States, the Supreme Court addressed the question of whether a federal

death penalty defendant’s Eighth Amendment rights were violated because the jurors in his case

were not given a jury instruction at the punishment phase of the trial regarding the consequences of

a jury deadlock at punishment. Because Jones was a federal death penalty case, under the federal

death penalty statute, the jury was required to consider all aggravating and mitigating factors and

determine whether the aggravating factors outweighed the mitigating factors. All aggravating factors

in a federal death penalty case must be proven beyond a reasonable doubt, whereas the jury may

consider a mitigating circumstance so long as one juror finds that its existence has been established

by a preponderance of the evidence. In Jones, the jury unanimously found the existence of two

statutory and two non-statutory aggravating factors beyond a reasonable doubt and various jurors

found the existence of ten mitigating factors. After weighing these factors, the jury unanimously

recommended that Jones be sentenced to death. The jury did not receive an instruction requested
30

by the defense which informed the jurors that if they were unable to reach an unanimous decision

with regard to the sentence to be imposed, the judge should be informed and would then impose a

sentence of life imprisonment without possibility of parole. Jones, 527 U.S. at 376-80.

Although the Supreme Court in Jones acknowledged that it had previously held that a death

sentence could not be imposed arbitrarily, that a jury must be given a vehicle in which all relevant

mitigating evidence may be considered at the punishment phase of a capital murder trial, and that

a jury cannot be affirmatively misled regarding its role in the sentencing process, the Court held that

the Eighth Amendment was not violated simply because the jury was not informed of the

consequences of a deadlock on the issue of punishment. Specifically, the Court held that the federal

constitution was not violated because: 1) the jury in Jones’ case was not misled about its role at

punishment; 2) the object of the jury system is to secure unanimity by a dialogue among the jurors;

and 3) in a capital sentencing proceeding the government has a strong interest in having the jury

express the conscience of the community that might be undermined if the jury was informed about

the consequences of a deadlock. Id. at 382. Moreover, although four justices dissented in Jones

because they believed that an instruction regarding the effect of a jury deadlock was constitutionally

required in the case, in the dissenting opinion authored by Justice Ginsburg, it is not disputed that

the Eighth Amendment does not require that a jury be instructed as to the consequences of a failure

to agree, but it is instead argued that such an instruction was necessary in Jones because of particular

instructions given to the jury in that case which, the dissent argued, created a reasonable probability

that the jurors in that case mistakenly believed that Jones could be sentenced to something less that

life without parole for his crime. Jones, 527 U.S. at 418, n. 20. Because those instructions were

peculiar to that case, both the majority and the dissenting opinions in Jones make clear that the
31

Supreme Court does not consider it a requirement of the Eighth Amendment that a capital jury be

informed of the consequences of a failure to agree with respect to its verdict at the punishment phase

of the trial.

Although Jones did not specifically address Hudson’s Fourteenth Amendment claim, since

Jones was handed down by the Supreme Court, the Fifth Circuit has held that an argument that the

“12-10" rule in Texas violated a capital murder defendant’s Eighth and Fourteenth Amendments was

without merit. Alexander v. Johnson, 211 F.3d 895, 897, n. 5 (5th Cir. 2000). Moreover, the Fifth

Circuit has also consistently held that any ruling that the “12-10" rule violated the federal

constitution would be a new constitutional rule of criminal procedure as defined in Teague v. Lane,

489 U.S. 288, 311-13 (1989), that did not place certain kinds of individual conduct beyond the power

of the criminal law-making authority to proscribe and was not a watershed rule of criminal

procedure, and therefore could not form the basis for federal habeas corpus relief. See Hughes v.

Dretke, 412 F.3d 582, (th Cir. (Tex.) 2005); Alexander, 211 F.3d at 897; Davis v. Scott, 51 F.3d 457,

467 (5th Cir. 1995); Webb v. Collins, 2 F.3d 93 (5th Cir. 1993). Accordingly, this claim is without

merit, and it is denied.

G. Claims Regarding the Jury Selection Process (Claim #10).

Hudson next asserts in claim ten that the Dallas County venire selection process violates his

rights to an impartial jury consisting of a representative cross-section of the community under the

Sixth and Fourteenth Amendments because Hispanics, persons 18 to 34 years old, and persons from

households with incomes under $35,000 are under represented in the jury pool. (Pet. Brief at 62-63).

The state habeas court declined to consider the merits of Hudson’s tenth claim because he failed to
32

raise it at trial and, pursuant to the Texas contemporaneous objection rule found that he had

procedurally defaulted. (SH Tr. at 336 (#314)).

When a claim has been dismissed by a state court pursuant to an independent and adequate

state procedural rule, a federal district court may not engage in habeas review of that claim unless

the prisoner can establish either (1) good cause for his default as well as actual prejudice that will

result from the alleged violation of federal law or (2) that failure to consider the claims would result

in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. at 750; Harris v. Reed, 489

U.S. 255, 262 (1989). To satisfy these requirements, the state court’s dismissal of the claim must

“clearly and expressly” indicate that it rests on state grounds barring relief, and the bar must be one

that is strictly and regularly followed by state courts applied to the majority of similar claims. Finley

v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001), citing Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir.

1995). 

The state habeas court “clearly and expressly” declined to review Hudson’s constitutional

claim regarding the Dallas County venire selection process because of the contemporaneous

objection rule. (SH Tr. at 336 (#314)). The state habeas court’s discussion of the merits of Hudson’s

claim in the alternative has no affect on his ruling based on procedural grounds. Cardenas v. Dretke,

405 F.3d 244, 249 (5th Cir. 2005). Moreover, the Fifth Circuit has recognized that Texas’

contemporaneous objection rule is well established, and that it has been “strictly or regularly

followed.” Hogue v. Johnson, 131 F.3d 466, 488 (5th Cir.1997); see also Stokes v. Anderson, 123

F.3d 858 (5th Cir. (Miss.) 1997) (discussing regularity requirement). Accordingly, the Texas

contemporaneous objection rule constitutes an adequate and independent state ground that
33

procedurally bars federal habeas review of Hudson’s claim. See Rowell v. Dretke, 398 F.3d 370, 375

(5th Cir.) (concluding same).

Under the precedent of this Circuit, this Hudson must demonstrate either “cause for the

default and actual prejudice as a result of the alleged violation of federal law, or ... that failure to

consider the claims will result in a fundamental miscarriage of justice” for this Court to review his

tenth claim further. Stokes, 123 F.3d at 859. In order to meet his burden of showing cause, Hudson

must show that an objective external factor kept his trial counsel from complying with the rule.

Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1998) (citations omitted). In order to show

prejudice, Hudson must prove that errors at his trial actually worked to his “substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S.

152, 170 (1982) (emphasis omitted). But Hudson does not allege, much less demonstrate, cause or

prejudice. Nor does Hudson allege in the alternative that the Court’s failure to consider his claims

will result in a miscarriage of justice, which would require him to establish his “actual innocence,”

which he does attempt. See Neville v. Dretke, 423 F.3d 474, 480-81 (5th Cir.2005) (citing Sawyer

v. Whitley, 505 U.S. 333, 336 (1992)). Accordingly, the Court finds that Hudson’s tenth claim is

procedurally barred.

H. Cumulative Error Claim (Claim #11).

In his eleventh and final claim for relief, Hudson alleges that he is entitled to habeas relief

based on the cumulative effect of all the constitutional violations alleged in his petition, which, taken

together, have denied him due process of law in violation of the Fifth and Fourteenth Amendments,

even if none of the events individually violated his rights. (Pet. Brief at 66- 67). Hudson relies upon

the Fifth Circuit’s decision in Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992), in which the court
34

held that in order for a federal habeas petitioner to prevail on a claim of cumulative error at a state

trial, he must establish that: 1) the individual errors involved matters of constitutional dimension

rather than mere violations of state law; 2) the errors were not procedurally defaulted for habeas

purposes; and 3) the constitutional errors so infected the entire trial that the resulting conviction

violates due process. Id. at 1458.

As this Court has held in this opinion, the claims raised by Hudson are without merit and

therefore do not establish any constitutional errors which infected the trial such that Hudson’s

conviction and sentence violate his due process rights. The state habeas court also concluded that

there was no cumulative error because Hudson had failed to establish any constitutional violations.

(SH Tr at 342 (#347-47)). This conclusion is not contrary to federal law, and Hudson’s eleventh

claim for relief is therefore denied.

IX. EVIDENTIARY HEARING

Hudson requested in the alternative that an evidentiary hearing be held to resolve any

disputed fact issues. (Pet. Brief at 68). When the pleadings demonstrate a factual dispute, that, if

resolved in Hudson’s favor, would entitle him to relief and the state has not afforded him a full and

fair evidentiary hearing, a federal habeas corpus petitioner is entitled to discovery and an evidentiary

hearing. See Hughes v. Johnson, 191 F.3d 607, 630 (5th Cir. 1999). Since the pleadings

demonstrate that there is no factual dispute upon which federal habeas corpus relief can be granted,

no evidentiary hearing is warranted. 
35

X. CONCLUSION

Hudson’s petition for a writ of habeas corpus is DENIED.

IT IS SO ORDERED.

DATED: September 20 , 2007. th

 _______________________________________

 ED KINKEADE

 UNITED STATES DISTRICT JUDGE