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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BERNARD RENA CLEMONS, 1054384, )

Petitioner, )

)

v. ) No. 3:05-CV-1930-N

) ECF

NATHANIEL QUARTERMAN, )

Director TDCJ-CID, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Procedural Background

On August 1, 2001, Petitioner was convicted of arson. State of Texas v. Bernard Rena

Clemons, No. F-0173069-SH (Crim. Dist. Ct. No. 1, Dallas County, Tex., Aug. 1, 2001). 

Petitioner was sentenced to thirty years confinement. On April 2, 2003, the Fifth District Court

of Appeals affirmed Petitioner’s conviction. Clemons v. State, No. 05-01-01402-CR, slip op.

(Tex. App. – Dallas 2003). On September 3, 2003, the Court of Criminal Appeals denied the

petition for discretionary review. Clemons v. State, P.D.R. No. 723-03.

On October 6, 2004, Petitioner filed a state petition for writ of habeas corpus. Ex parte

Clemons, Application No. 61,715-01. On August 31, 2005, the Court of Criminal Appeals

denied the application.

 

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On September 27, 2005, Petitioner filed this federal petition. He argues: 

(1) the indictment is defective; 

(2) hearsay evidence was erroneously admitted; 

(3) evidence was obtained through an illegal search of his vehicle; 

(4) the prosecutor presented perjured testimony through Dorothy Perry as to how the fire

started; 

(5) the evidence is insufficient to support the conviction; 

(6) the prosecutor committed misconduct; 

(7) he received ineffective assistance of counsel because counsel:

(a) failed to timely move to quash the indictment;

(b) failed to timely move to suppress evidence;

(c) failed to timely move to suppress Petitioner’s statement;

(d) failed to move for a continuance;

(e) failed to file a motion for exculpatory evidence;

(f) failed to subpoena the 911 tape of the complaining witness;

(g) failed to make a proper argument;

(h) failed to visit and investigate the crime scene;

(I) failed to object to the state’s impeachment of its own witness;

(j) failed to call a defense expert to rebut the state’s experts;

(k) failed to make an opening statement;

(l) failed to consult an expert regarding gasoline ignited fires;

(m) failed to correct perjured testimony regarding the arrest;

 

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(n) failed to correct perjured testimony regarding the use of a blanket and

gasoline;

(o) failed to object to a mid-trial substitution of the trial judge;

(p) failed to move for an instructed verdict;

(8) He received ineffective assistance of appellate counsel because failed to raise the

above issues.

II. Discussion

1. Factual Background

Dorothy Perry was living at 4502 Baldwin Street in Dallas, Texas, in December 2000. 

(Trial Tr. Vol. 3 at 11). She had dated Petitioner for six years and she considered him to be her

boyfriend. (Id. at 12). On the evening of December 29, 2000, Perry and Petitioner were

drinking beer. (Id. at 14-16). Petitioner left the house to obtain more beer and, upon his return,

Perry refused to allow him back into the house. (Id. at 17-18). Petitioner told Perry he was

“going to burn [Perry] out.” (Id. at 25). Petitioner went to a window and broke it. (Id. at 19). 

Petitioner used a blanket to break the window, attempted to pour gasoline on the blanket, and

attempted to start the blanket on fire. (Id. at 22-24). At trial, Perry denied telling investigators

that she saw Petitioner pour gasoline on the blanket. (Id. at 30-31).

On the date of the incident, Officer Tina Duncan responded to a possible arson call at

Perry’s residence. (Id. at 47-49). When Officer Duncan arrived, she was immediately

approached by Petitioner. (Id. at 49). Petitioner stated “I didn’t do it” and “someone else

walking down the street must have done it.” (Id. at 49-50). Officer Duncan stated that Petitioner

appeared intoxicated. (Id. at 50). Officer Duncan testified that Perry was very excited, upset,

 

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angry and yelling loudly. (Id. at 52). Duncan stated Perry shouted that Petitioner tried to burn

the house down. (Id.). Duncan calmed Perry down and Perry explained what had happened that

day and evening. (Id. at 53-55). Petitioner was placed under arrest. (Id. at 57). A cigarette

lighter was found on Petitioner. (Id. at 72). 

David Cofran testified that he is an investigator with the Dallas Fire Department. (Id. at

73). He was dispatched to Perry’s residence on the date of the incident. (Id. at 75). Perry told

him that Petitioner threatened to burn the house down, then proceeded to carry out the threat by

pouring gasoline on a blanket and setting the blanket on fire. (Id. at 78, 88). Cofran testified

that the window was broken and there were burn patterns on the window seal and remnants of

burnt cloth on the side of the house. (Id. at 80). The fire was very small, localized and

consistent with a gasoline based fire. (Id. at 84-85). Petitioner gave consent to search his car,

and a gas can was found in the trunk of his car. (Id. at 88-89).

Linda Osborn testified that she is an investigator with the Dallas Fire Department. (Id. at

110). She was dispatched to Perry’s residence on the date of the incident. (Id. at 111). 

Detective Osborn obtained a written affidavit from Perry on the day of the fire. (Id. at 111). In

the statement, Perry said that Petitioner retrieved a blanket, poured gasoline on it, and set the

blanket on fire. (Id. at 113).

Randall Willmon testified that he is a firefighter/paramedic with the Dallas Fire

Department. (Id. at 127). He was dispatched to Perry’s residence on the date of the incident. 

(Id.). He testified that no fire was visible from the side of the house, but whatever had been

burning had been put out with water. (Id. at 129). 

 

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2. Standard of Review

The pertinent terms AEDPA state:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a state court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication

of the claim – 

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

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

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

the facts in light of the evidence presented in a State court proceeding.

28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the writ

of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United

States Supreme Court on a question of law or if the state court decides a case differently from the

United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal court may

grant a writ of habeas corpus if the state court identifies the correct governing legal principle

from the United States Supreme Court’s decisions, but unreasonably applies that principle to the

facts of the prisoner’s case. Id.

This amendment applies to all federal habeas corpus petitions which are adjudicated on

the merits in state court after April 24, 1996. See Lindh, 521 U.S. at 336. The petition in this

case is subject to review under the AEDPA.

3. Defective Indictment

Petitioner argues the indictment was defective because it failed to state the “manner and

means” by which Petitioner started the fire. It is well settled that “[w]here the state courts have

 

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held than an indictment is sufficient under state law, a federal court need not address this issue.” 

McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), cert. denied, 513 U.S. 854 (1994). Since the Texas

Court of Criminal Appeals denied relief on this claim, habeas corpus relief is foreclosed. See,

e.g., Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985). 

4. Hearsay Evidence

Petitioner argues that hearsay evidence regarding how the fire was started was

improperly admitted. Petitioner does not identify any testimony that he claims was inadmissible. 

To the extent that Petitioner is claiming that the statements made by Perry on the date of the

incident were inadmissible, this claim fails. At trial, Perry stated that Petitioner attempted to

start the blanket on fire, but was unable to pour gasoline on the blanket because the gas can

appeared to be empty. (Tr. Vol. 3 at 23-24). Perry denied telling investigators that she saw

Petitioner pour gasoline on the blanket. (Id. at 30 - 31, 34). Officer Duncan testified that on the

date of the incident, Perry was upset and shouting when she told Duncan that Petitioner poured

gasoline on the blanket and started the fire. (Id. at 51-55). Perry’s statements were therefore

admissible under the excited utterance exception to the hearsay rule. Fed. R. Evid. 803(2); Tex.

R. Evid. 803(2). Additionally, since Perry’s trial testimony contradicted her statements to

investigators, Perry’s statements were admissible as impeachment evidence. Tex. R. Evid. 613

and 806. This claim should therefore be denied.

5. Vehicle Search

Petitioner argues that his vehicle was unlawfully searched. Where a state affords

sufficient opportunity to litigate a Fourth Amendment claim, federal habeas review is not

available to a state prisoner alleging that his conviction rests on evidence obtained through an

 

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unconstitutional search and seizure. See Stone v. Powell, 428 U.S. 489-96 (1976). Petitioner

had a full and fair opportunity to litigate his Fourth Amendment claims in the state courts. This

claim should therefore be denied. 

6. Perjured Testimony

Petitioner argues the prosecutor presented perjured testimony from Perry regarding how

the fire was started. It appears Petitioner is arguing that the statements Perry made on the day of

the incident were false, so the prosecutor should not have introduced her statements at trial. 

A state denies a criminal defendant due process when it knowingly uses perjured

testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S.

150 (1972); Cordova v. Collins, 953 F.2d 167 (5th Cir. 1992). To obtain relief, the defendant

must show: (1) the testimony was actually false; (2) the state knew it was false; and (3) the

testimony was material. Fauder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996) (citing Kirpatrick v.

Whitley, 992 F.2d 491, 497 (5th Cir. 1993)). Petitioner has failed to show that Perry’s statements

were false. Petitioner’s claim should therefore be denied.

7. Insufficiency of the Evidence

Petitioner argues the evidence was insufficient to support the conviction. Respondent

argues this claim is procedurally barred because Petitioner failed to raise the claim on direct

review. If a state court has declined to address a prisoner’s federal claims because the prisoner

failed to meet a state procedural requirement, such as filing a petition for discretionary review,

the procedural bar applies. The general rule that a state court must explicitly apply a procedural

bar to preclude federal review does not apply when a petitioner has not presented his claims to

the highest court of the state and the state court to which he would be required to present his

 

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Under Texas law, insufficiency of the evidence is not cognizable in a post-conviction writ of

habeas corpus. Ex parte Easter, 615 S.W.2d 719, 721 (Tex. Crim. App. 1981). See West v. Johnston, 92

F.3d 1385, 1398, n.18 (5th Cir. 1996); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994).

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claims would now find the claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722,

729-31 (1991). 

The records reflects that Petitioner did not raise his insufficiency of the evidence claim

on appeal, or in his petition for discretionary review.1

 Accordingly, the Texas Court of Criminal

Appeals has not reviewed the claim. The claim cannot be reviewed by a state court because it is

too late to file a petition for discretionary review. If this Court were to require Petitioner to

return to state court to exhaust this claim, it would be subject to dismissal. Federal courts

ordinarily will not review questions of federal law when such a state procedural bar exists.

To overcome the procedural bar established by the abuse-of-the-writ doctrine, a

petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result

of the alleged violation of federal law; or (2) that failure to consider the claims will result in a

“fundamental miscarriage of justice.” Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997) (citing

Coleman, 501 U.S. at 750). Petitioner has not shown sufficient cause for his failure to present

this claim to the Texas Court of Criminal Appeals.

Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. 

This exception is “confined to cases of actual innocence, ‘where the petitioner shows, as a

factual matter, that he did not commit the crime of conviction.’” Fairman v. Anderson, 188 F.3d

635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). To establish

the required probability that he was actually innocent, a petitioner must support his allegations

with new, reliable evidence that was not presented at trial and must show it was more likely than

 

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not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing

Schlup, 513 U.S. at 327). Petitioner has presented no new, reliable evidence showing that it was

more likely than not that no reasonable juror would have convicted him. Petitioner has not

overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal

habeas relief on Petitioner’s insufficiency of the evidence claim.

8. Prosecutorial Misconduct

Petitioner claims the prosecutor committed misconduct during closing arguments by: (1)

striking at the Petitioner over the shoulders of his attorney; (2) shifting the burden of proof to

Petitioner; (3) attempting to provoke Petitioner by poking and pointing his finger in the face of

Petitioner; (4) arguing evidence of intoxication and other unrelated extraneous offenses; (5)

making a direct comment to the jury that the judge did not believe the defense evidence; and (6)

arguing issues regarding punishment when he knew punishment would be decided by the judge.

Prosecutorial misconduct implicates due process concerns. Foy v. Donnelly, 959 F.2d

1307, 1316 (5th Cir. 1992). When a petitioner asserts a due process violation, the Court must

determine whether the prosecutorial comments “so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In the habeas context,

the appropriate review for such allegations is “the narrow one of due process, and not the broad

exercise of supervisory power.” Id. (quoting Donnelly, 416 U.S. at 642). 

In federal habeas actions, improper jury argument by the state does not present a claim of

constitutional magnitude unless it is so prejudicial that the petitioner’s state court trial was

rendered fundamentally unfair within the meaning of the Fourteenth Amendment’s Due Process

 

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Clause. To establish that a prosecutor’s remarks are so inflammatory as to prejudice the

substantial rights of a defendant, the petitioner must demonstrate either persistent and

pronounced misconduct or that the evidence was so insubstantial that, in probability, but for the

remarks no conviction would have occurred. Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir.

1986) (citations omitted). A trial is fundamentally unfair if there if there is a reasonable

probability that the verdict might have been different had the trial been properly conducted. Foy,

959 F.2d at 1317.

(a) Attacking Petitioner

Petitioner argues the prosecutor attacked Petitioner indirectly by attacking his counsel. 

During closing arguments, the prosecutor stated: 

[T]he defense attorney makes you – says what makes this case arson? I mean he has the

gall to ask you what makes this case arson. 

(Trial Tr. Vol. 4 at 21). After an objection by the defense attorney, the court instructed the

prosecutor to rephrase the argument. Petitioner has not shown that this comment rendered his

trial fundamentally unfair. 

(b) Shifting the Burden of Proof

Petitioner argues the prosecutor shifted the burden of proof to the defense. The

prosecutor stated: 

The defense talks about nobody said there was a fire that day. Well, Dorothy Perry did. I

mean it’s almost ridiculous to say that there wasn’t a fire. I mean when you can see it. 

You would have to speculate. There is nothing else in evidence that shows that there

wasn’t a fire that day. 

(Trial Trans. Vol. 4 at 24). Defense counsel objected that the prosecution was shifting the

burden of proof to the defense. The court overruled the objection. Petitioner has not shown that

 

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the prosecutor attempted to shift the burden of proof to Petitioner. This claim should be denied. 

(c) Provoking Petitioner

Petitioner argues the prosecutor attempted to provoke him. The record reflects that as the

prosecutor stated: “This business about whether there was gas or not is irrelevant, when you get

down to it. Obviously this man thought there was gas in there, right? . . . . .” (Id. at 25). 

Defense counsel objected that the prosecutor was trying to provoke the Defendant by “getting in

his face.” (Id.). The court overruled the objection. Petitioner has not shown that the

prosecutor’s actions rendered his trial fundamentally unfair.

(d) Extraneous Offenses

Petitioner argues the prosecutor committed misconduct when he argued that Petitioner

was intoxicated at the time of the offense. In his closing arguments, the prosecutor stated: 

Voluntary intoxication, I want to talk to you abut this. You’re told in the Court’s Charge

that if you voluntarily get yourself intoxicated, and you commit a crime, that’s not a

defense. I think everyone of you would probably agree. We can’t go out, get ourself

(sic) drunk, commit a crime, and say Kings (sic) X.

(Id. at 26).

Defense counsel objected that there was no testimony regarding voluntary intoxication. 

The court overruled the objection. The trial testimony shows that Dorothy Perry testified that

Petitioner had been drinking the day of the incident. (Trial Tr. Vol. 3 at 14-16). Dallas Police

Officer Tina Duncan testified that on the day of the incident, Petitioner appeared intoxicated. 

(Id. at 50). A prosecutor’s closing arguments may refer to the testimony presented and

reasonable inferences from that testimony. United States v. Munoz, 150 F.3d 401, 414-415 (5th

Cir. 1998). Petitioner has failed to show the prosecutor committed misconduct. 

Additionally, Petitioner argues that the prosecutor referred to other extraneous offenses in

 

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his closing arguments. Petitioner, however, does not identify these other alleged extraneous

offenses. This claim is conclusory and should be denied. See Ross v. Estelle, 694 F.2d 1008,

1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional

issues in habeas proceedings).

(e) Prosecution Comments

Petitioner argues the prosecutor made a direct comment to the jury that the judge did not

believe the defense evidence. Petitioner has not identified this alleged statement. The claim is

conclusory and should be denied. See, Ross, 694 F.2d at 1012. 

(f) Punishment

Petitioner argues the prosecutor improperly argued punishment issues during his closing

arguments. In his closing statements, the prosecutor referred to the charge on a lesser included

offense. The prosecutor stated: 

Now, the important thing with regard to lesser included it’s lesser for another reason. 

There’s lesser punishment. Lesser charge, lesser punishment.

(Trial Tr. Vol. 4 at 27).

The Court finds that although this statement refers to punishment issues, it did not render

Petitioner’s trial fundamentally unfair. This claim should be denied.

9. Ineffective Assistance of Counsel

 To sustain a claim of ineffective assistance of counsel, Petitioner must show that: (1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense so

gravely as to deprive Petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). In Strickland, the Court stated that “[j]udicial scrutiny of counsel’s performance must be

highly deferential” and “every effort [must] be made to eliminate the distorting effects of

 

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hindsight.” Strickland, 466 U.S. at 689. Courts, therefore, must “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such

prejudice, Petitioner must show “a reasonable probability that the result of the proceedings

would have been different but for counsel’s unprofessional errors.” Crane v. Johnson, 178 F.3d

309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he mere possibility of a

different outcome is not sufficient to prevail on the prejudice prong.” Id. “Rather, the defendant

must demonstrate that the prejudice rendered sentencing ‘fundamentally unfair or unreliable.’”

Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

(a) Motions

Petitioner argues his counsel was ineffective for failing to file a number of motions. 

First, he argues his counsel should have moved to quash the indictment. On direct review, the

court reviewed Petitioner’s claim that the indictment was defective because it did not allege the

“manner and means” of starting the fire. The appellate court rejected the claim that the

indictment was defective, finding that the indictment sufficiently put Petitioner on notice of the

charges against him. Petitioner has not shown that the state court decision to deny relief was

unreasonable. 

Petitioner argues his counsel was ineffective because he failed to file a motion to

suppress the statements Petitioner made on the day of the incident. Officer Duncan testified that

as she approached the house on the date of the incident, Petitioner stated to her, “I didn’t do it,”

and “someone else walking down the street must have done it.” (Trial Tr. Vo1. 3 at 49-50). 

Petitioner has not stated how his counsel was deficient for failing to suppress these statements. 

 

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Further, he fails to state a basis for suppression. Petitioner’s claim should be denied.

Petitioner alleges his counsel was ineffective for failing to file a motion to suppress

evidence obtained from his vehicle. Officer Duncan and Investigator Cofran testified that

Petitioner voluntarily consented to a search of his vehicle. (Id. at 60-61; 88-89). Petitioner has

not shown any basis for excluding this evidence. 

Petitioner alleges his counsel was ineffective for failing to file a motion to suppress

evidence obtained from a search of his residence. Petitioner does not state what evidence was

obtained through this search, or whether the evidence was introduced at trial. He has therefore

failed to show that his counsel was deficient or that he was prejudiced.

Petitioner argues his counsel was ineffective for failing to file a motion for continuance. 

He argues the continuance was needed to request arrest reports and book-in sheets that would

show Officer Duncan gave false testimony. Petitioner has made no showing that this evidence

would have contradicted Officer Duncan’s testimony. The claim is conclusory and should be

denied.

Petitioner argues his counsel was ineffective for failing to file a motion for exculpatory

evidence. He argues that the police reports and expert reports from the fire investigators

contained exculpatory evidence. Petitioner has made no showing that these documents contain

exculpatory evidence. His claim is conclusory and should be denied.

Petitioner claims his counsel was ineffective for failing to subpoena the 911 tapes of the

incident. He states that tapes would contradict Officer Duncan’s testimony that she was

responding to a fire, when she instead was responding to a disturbance. Petitioner has submitted

no evidence that the 911 tapes would contradict Officer Duncan’s testimony. His claims are

 

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conclusory and should be denied. 

(b) Counsel’s Arguments

Petitioner argues his counsel was ineffective because he failed to present a coherent

argument to the judge and jury. Petitioner’s claim is conclusory and should be denied.

(c) Investigation

Petitioner argues his counsel was ineffective for failing to investigate and visit the scene

of the incident. To establish that counsel was ineffective for a failure to investigate, the

petitioner must do more than merely allege a failure to investigate – he must state with

specificity what the investigation would have revealed, what specific evidence would have been

disclosed, and how the evidence would have altered the outcome of the trial. See Anderson v.

Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). 

On state habeas review, Petitioner’s counsel submitted an affidavit stating that he and his

investigator went to the scene of the offense, where he “took numerous pictures and interviewed

witnesses.” (Ex parte Clemons, No. 61,715-01 at 248). Petitioner has failed to show that the

state court’s denial of this claim was unreasonable. He has failed to specify what a further

investigation would have revealed, and how it would have altered the outcome of the trial. 

Petitioner’s claim should be denied.

(d) Objections

Petitioner argues his counsel was ineffective for failing to object to the state’s

impeachment of its own witness, Dorothy Perry. Petitioner does not state the basis for objecting

to this witness’s testimony. As discussed above, Perry’s statements on the day of the incident

were admissible as excited utterances under Texas Rule of Evidence 802(2). Petitioner’s claim

 

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should be denied.

(e) Expert Witness

Petitioner alleges his counsel was ineffective because he failed to call the defense

investigator to testify as an expert witness to rebut the testimony of the state’s witnesses. 

Petitioner has not shown that his investigator would have rebutted the state’s witnesses. As the

Fifth Circuit has stated, “hypothetical or theoretical testimony will not justify the issuance of a

writ . . . .” Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986). Petitioner’s conclusory

allegations should be denied. 

(f) Opening Statement

Petitioner alleges his counsel was ineffective for failing to make an opening statement. 

Petitioner has not shown that his counsel’s conduct fell outside of reasonable trial strategy. See

Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). He has failed to show his counsel was

deficient or that he suffered prejudice from the failure to make an opening statement. 

Petitioner’s claim should be denied.

(g) Experts

Petitioner argues his counsel was ineffective for failing to hire or consult an expert on

gasoline ignited fires. Petitioner, however, has submitted no evidence that an expert would have

testified favorably for the defense. See Martin, 796 F.2d at 819 (“hypothetical or theoretical

testimony will not justify the issuance of a writ . . . .”). Petitioner’s claim should be denied.

(h) Perjury

Petitioner argues his counsel was ineffective because he failed to correct perjured

testimony by the state’s witnesses. Petitioner has failed to show that the officers and

 

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investigators offered perjured testimony. Further, the record reflects that defense counsel crossexamined these witnesses. Petitioner’s claim is conclusory and should be denied.

(i) Substitution

Petitioner argues his counsel was ineffective because he failed to object to the

substitution of a new judge during the trial. The record shows that a different trial judge

accepted the verdict from the jurors. Petitioner has not stated the basis for objecting to this

procedure. He has further failed to show that he was prejudiced by the procedure. Petitioner’s

claim should be denied.

(j) Instructed Verdict

Petitioner argues his counsel was ineffective for failing to move for an instructed verdict. 

The state habeas court reviewed this claim and found it was without merit. Petitioner has

submitted no evidence that the result of his trial would have been different if his attorney had

moved for an instructed verdict. Petitioner’s claim should be denied

(k) Cumulative Errors

Petitioner argues his counsel was ineffective because of a cumulative effect of the abovediscussed errors. The Court finds Petitioner’s previously discussed claims of ineffective

assistance of counsel should be denied. His claim of ineffective assistance of counsel based on

cumulative error should likewise be denied.

(l) Appellate Counsel

Petitioner argues he received ineffective assistance of appellate counsel because counsel

failed to raise the above discussed ineffective assistance of counsel claims. The Court has found

that Petitioner’s claims of ineffective assistance of trial counsel should be denied. His claim of

 

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ineffective assistance of appellate counsel, based on the same claims, should also be denied.

10. Summary

Petitioner is lawfully restrained because he has failed to prove that he has been denied a

constitutionally protected interest. Accordingly, the state courts’ decision to deny relief is not

contrary to or does not involve an unreasonable application of clearly established federal law and

is not based on an unreasonable determination of the facts in light of the evidence presented in

the state court proceedings.

RECOMMENDATION

This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 be DENIED.

Signed this 11th day of October, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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Findings, Conclusions and Recommendation

of the United States Magistrate Judge Page -19-

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140 (1985). Additionally, the

failure to file written objections to proposed findings and recommendations within ten (10) days

after being served with a copy shall bar the aggrieved party from appealing the factual findings

and legal conclusions of the Magistrate Judge that are accepted by the District Court, except

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

Cir. 1996) (en banc).

 

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