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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BOBBY LEE CARTER, 1083973, )

Petitioner, )

v. ) No. 3:05-CV-516-N

) ECF

NATHANIEL QUARTERMAN, Director, Texas )

Department of Criminal Justice, ) 

Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of Title 28, United States Code, Section 636 (b), as implemented by an order of the

United States District Court for the Northern District of Texas. The Findings, Conclusions and

Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. NATURE OF THE CASE

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

inmate in the Texas Department of Criminal Justice, Institutional Division (“TDCJ-CID”). 

Respondent Nathaniel Quarterman is Director of the TDCJ-CID.

II. PROCEDURAL BACKGROUND

Petitioner was convicted of aggravated sexual assault of a child under the age of fourteen. 

The State of Texas v. Bobby Lee Carter, No. F-0072135-NKQ (204th Dist. Ct., Dallas County,

Tex., Feb. 6, 2002). Petitioner was sentenced to fifty-five years imprisonment. On October 30,

2002, the Fifth District Court of Appeals affirmed Petitioner’s conviction. Carter v. State, No.

 

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05-02-00257-CR (Tex. App. – Dallas, Oct. 30, 2002) (unpublished). On April 16, 2003, the

Court of Criminal Appeals refused Petitioner’s petition for discretionary review. Carter v. State,

PDR No. 2043-02.

On April 12, 2004, Petitioner filed a state application for writ of habeas corpus. Ex parte

Carter, Application No. 60,892-01. On May 11, 2005, the Court of Criminal Appeals denied the

application. 

On February 12, 2005, Petitioner filed this federal petition. He argues: 

(1) the evidence was legally and factually insufficient to support the conviction; 

(2) the victim’s outcry was not made within a one-year period; and 

(3) he received ineffective assistance of counsel because his counsel: 

(a) failed to investigate or call expert witnesses; 

(b) failed to cross-examine the complainant; 

(c) failed to protect Petitioner’s rights at trial; 

(d) failed to put the state’s case to an adverse test; and 

(e) failed to protect Petitioner’s rights on direct appeal.

On June 28, 2005, Respondent filed his answer. On August 25, 2005, Petitioner filed a

traverse. The Court finds the petition should be denied.

III. FACTUAL BACKGROUND

The Fifth District Court of Appeals recited the following factual background in its

opinion on direct appeal:

M.M testified appellant was her “goddaddy” and that he would do “things” to her

while his wife was working nights as a security guard. M.M. testified that it was

common for her and her sister to spend the night at appellant’s house. While M.M. was

 

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asleep, appellant would pick her up, carry her to his bedroom, and place her on his bed. 

Once there, appellant would pull M.M.’s sleep shorts down and touch her “private” with

his “private.” M.M. said the “touches” felt like they were “inside” and they hurt. M.M.

eventually told her boyfriend Nathan about the “touches,” then told her sister N.M. and

then the police. M.M. was afraid to tell her mother because she was afraid of “everybody

being mad at [her].” M.M., who was fifteen years old at the time of trial, testified the

“touches” started when she was ten years old and continued until just after she turned

twelve.

A.M., M.M.’s younger sister, testified she and M.M. spent a great deal of time at

appellant’s house. When she and M.M. spent the night at appellant’s house, they would

share a bed. Sometimes when she woke up in the morning, M.M. was not in the bed. On

these occasions, A.M. would look for M.M., but would not be able to find her. However,

she would find appellant’s bedroom door locked. On one such occasion, A.M. did see

M.M. walk out of appellant’s bedroom in the morning after spending the night. A.M. did

not think much about these events until M.M. told her what was going on inside

appellant’s bedroom. A.M. told her mother what M.M. had told her.

M. Brown, A.M. and M.M.’s mother, testified that appellant had been a close

friend of the family. During the winter and spring of 1999, A.M. and M.M. were at

appellant’s house “practically ever weekend” and on holidays. In the fall of 2000, Brown

told A.M. and M.M. that she was taking them to the doctor before school started. Later

that night, M.M. told Brown that appellant would take her to his room at night and “have

sex” with her. Brown immediately called the police. Brown did not have M.M.

examined for evidence of appellant’s actions because M.M. did not “want no man

touching her.”

Carter v. State of Texas, No. 05-02-00257-CR (Tex. App. – Dallas, Oct. 30, 2002) at 2-3.

IV. DISCUSSION

A. Standard of Review

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the

AEDPA), 28 U.S.C. § 2254, provide:

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

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

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim –

 

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1

Respondent correctly notes that factual insufficiency of the evidence does not provide an

independent basis for federal habeas relief. “Factual insufficiency” is a creation of Texas law

whereby the reviewing court scrutinizes the factfinder’s weighing of the evidence. Clewis v.

State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). The relevant inquiry in a federal habeas

proceeding, however, is whether “[a] rational trier of fact could have found proof of guilt beyond

a reasonable doubt.” Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir. 1990), (quoting Jackson v.

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(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.A. § 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. See 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. See Williams, 529 U.S. at 307. 

 This amendment applies to all federal habeas corpus petitions which were filed after

April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2049, 138 L. Ed. 2d 481

(1997). The petition in this case is subject to review under the AEDPA.

B. Insufficiency of the Evidence

Petitioner claims the evidence was legally and factually insufficient to support his

conviction for aggravated sexual assault.1

 He states there was no medical evidence and no

 

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Virginia, 443 U.S. 307, 324 (1979)). This standard of review controls even if state law would

impose a more demanding standard of proof. Schrader, 904 F.2d at 284; see also Brown v.

Collins, 937 F.2d 175, 181 (5th Cir. 1991).

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expert testimony regarding the sexual assault. Federal habeas review of an insufficiency of the

evidence claim is extremely limited. A federal court may not disturb a conviction in a state

criminal proceeding unless no rational trier of fact could have found the elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gibson v. Collins,

947 F.2d 780, 781 (5th Cir. 1991). The evidence must be viewed in the light most favorable to

the verdict. Jackson, 443 U.S. 319; Gibson, 947 F.2d at 781. This standard of review applies in

both direct and circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir.

1990).

Under Texas law, a person commits aggravated sexual assault of a child under the age of

fourteen if the victim is younger than fourteen years of age and the person intentionally or

knowingly:

(I) causes the penetration of the anus or sexual organ of a child by any means;

[or]

 . . . .

(ii) causes the sexual organ of a child to contact or penetrate the mouth, anus

or sexual organ of another person, including the actor;

. . . . 

TEX. PENAL CODE § 22.01 and § 22.011(c).

In this case, the complainant testified that Petitioner touched her “private” with his

“private,” that she felt the touching “inside” of her, and that the touching hurt. (Trial Tr. Vol. 3

at 22-25). Using drawings of a boy and girl, the complainant identified the crotch area of the girl

 

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drawing as her “private” and the genitals of the boy drawing as Petitioner’s “private.” (Id. at 23-

24). The complainant also testified that she was fifteen years old at the time of trial, and that the

offenses started when she was ten years old and continued until she was around twelve years old. 

(Id. at 13, 28).

The complainant’s mother testified that the complaining witness was crying and shaking

when she told her that Petitioner would “have sex” with her. (Id. at 47-48). The complainant’s

sister testified that when she and the complainant would spend the night at Petitioner’s house,

she would often awake in the morning and the complainant would not be in her bed. Once she

saw the complainant emerge from Petitioner’s locked bedroom in the morning. (Id. at 37-39).

Viewing this evidence in the light most favorable to the verdict, the Court finds that the

evidence was sufficient to prove beyond a reasonable doubt that Petitioner committed aggravated

sexual assault of a child under the age of fourteen. The state appellate court found that “any

rational fact finder could have found the essential elements of the crime beyond a reasonable

doubt.” Carter v. State of Texas, No. 05-02-00257-CR (Tex. App. – Dallas, Oct. 30, 2002) at 5. 

The state court’s decision is neither contrary to clearly established federal law, nor unreasonable

in light of the evidence presented. This ground for relief should be denied.

C. Outcry Testimony

Petitioner argues that the complainant’s outcry statements were not admissible under

Texas Rule of Criminal Procedure 38.07 because she made the outcry over one year after the

incidents occurred. Section 38.07 states that a conviction for aggravated sexual assault:

is supportable on the uncorroborated testimony of the victim of the sexual offense if the

victim informed any person, other than the defendant, of the alleged offense within one

year after the date on which the offense is alleged to have occurred.

 

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Section 38.07 also states, however, that:

(b) the requirement that the victim inform another person of an alleged offense does

not apply if at the time of the alleged offense the victim was a person:

(1) 17 years of age or younger;

. . . . 

TEX. R. CRIM. PROC. § 38.07. The complainant in this case was under the age of 17. 

Petitioner’s claim of a violation of § 38.07 is without merit.

D. 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

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)).

 

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1. Failure to investigate or call expert witnesses

Petitioner states his counsel failed to call a medical expert and a child psychologist to

testify for the defense. Petitioner submits no affidavit or other evidence that a medical expert or

child psychologist would have testified favorably for the defense. 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 also argues his counsel failed to investigate and discover that Petitioner was

incarcerated during the time of the sexual assaults. Petitioner has submitted no evidence of his

incarceration at time of the incidents. His conclusory allegations fail to raise a colorable basis

for habeas corpus relief. 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). 

Petitioner’s claims should be denied.

2. Failure to cross-examine the complaining witness

Petitioner claims his counsel was ineffective for failing to cross-examine the complaining

witness. The record shows, however, that Petitioner’s counsel did in fact cross-examine the

complaining witness. (See Trial Tr. Vol.3 at 31-33). Petitioner’s claim should be denied. 

3. Failure to protect Petitioner’s rights

Petitioner states his counsel failed to protect his rights at trial and failed to put the state’s

case to “adverse test.” Petitioner does not explain these claims in his petition. In his traverse,

Petitioner states his counsel failed to object to the complainant’s outcry testimony, and did not

call important fact witnesses. As discussed above, the outcry evidence was not inadmissible

because the complainant failed to make the outcry within one year of the incidents. Petitioner

 

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states no other basis for excluding this evidence. Petitioner also fails to state who his counsel

should have called as a witness, and he has failed to show that the witness would have testified

favorably to the defense. Petitioner’s conclusory allegations fail to raise a colorable basis for

habeas corpus relief. See Ross, 694 F.2d at 1012. 

4. Appellate Counsel

Petitioner argues his appellate counsel was ineffective because she did not file a brief

arguing actual innocence and she failed to protect his rights on direct appeal. Respondent argues

this claim is procedurally barred. 

Federal courts may not review a state court decision that rests on an adequate and

independent state procedural default, unless the habeas petitioner shows cause for the default and

“prejudice attributable thereto” or demonstrates that the failure to consider the federal claim will

result in a “fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). 

When the last state court to review a claim clearly and expressly states that its judgment rests on

a procedural bar, the procedural default doctrine generally bars federal review. Id; Lowe v. Scott,

48 F.3d 873, 875 (5th Cir. 1995).

In this case, Petitioner failed to raise this claim in either a petition for discretionary

review or a state application for writ of habeas corpus. When a claim has not been reviewed by

the state’s highest court, this Court may find such claim procedurally barred. See Coleman v.

Thompson, 501 U.S. 722 n.1 (1991). 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 claims would now find the claims procedurally barred. Id. 

 

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Petitioner has not presented this claim to the Texas Court of Criminal Appeals. If this

Court required him to do so, the claims would be subject to dismissal under the Texas abuse-ofthe-writ doctrine. Tex. Code Crim. Pro. Ann. art. 11.07, § 4. That doctrine “prohibits a second

[state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that

could have been, but were not, raised in his first habeas petition.” Nobles v. Johnson, 127 F.3d

409, 423 (5th Cir. 1997) (footnote omitted). “[A]rticle 11.07 § 4 is an adequate and independent

state procedural ground to bar federal habeas review and . . . has been strictly and regularly

applied since 1994.” Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state

procedural ground exists, “federal courts ordinarily will not review questions of federal 

law . . . .” Id. (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)). 

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 his claims will result in a

fundamental miscarriage of justice.” Id. at 524. Petitioner has shown no 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). 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 not that no reasonable juror would have convicted him in

light of the new evidence. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has

 

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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 this claim.

E. Summary

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

constitutionally protected interest. Accordingly, the state courts’ determination 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 17th day of July, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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

recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title

28, United States Code, Section 636(b)(1), any party who desires to object to these findings,

conclusions and recommendation must serve and file written objections within ten days after

being served with a copy. A party filing objections must specifically identify those findings,

conclusions or recommendation to which objections are being made. The District Court need not

consider frivolous, conclusory or general objections. A party's failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from

a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). 

Additionally, any failure to file written objections to the proposed findings, conclusions and

recommendation within ten 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. Douglass v. United Servs.

Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

 

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