1

Petitioner’s previous conviction and life sentence for this charge were reversed and

remanded because extraneous offense evidence was improperly admitted. McKnight v. State,

No. 05-97-00875-CR (Tex. App. – Dallas, Aug. 3, 1999).

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIE ROMEL MCKNIGHT, #784060, §

Petitioner, §

§ No. 3:04-CV-1930-R

v. § ECF

§

DOUGLAS DRETKE, 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

Petitioner challenges his conviction for injury to a child. The State of Texas v. Willie

Romel McKnight, No. F-9700016-LJ, (Crim. Dist. Ct. No. 3, Dallas County, Tex., April 26,

2001).1 Petitioner was sentenced to forty years confinement. On December 31, 2002, the Fifth

District Court of Appeals affirmed Petitioner’s conviction. McKnight v. State, No. 05-01-00768-

CR (Tex. App – Dallas, Dec. 31, 2002). On June 11, 2003, the Court of Criminal Appeals

denied Petitioner’s petition for discretionary review. McKnight v. State, PDR No. 371-03. 

On June 21, 2004, Petitioner filed a state application for writ of habeas corpus. Ex parte

McKnight, No. 59,807-01. On December 15, 2004, the Court of Criminal Appeals denied the

 

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petition without written order. 

On August 28, 2004, Petitioner filed his federal petition. Petitioner argues: (1) he

received ineffective assistance of counsel; (2) there was insufficient evidence to support his

conviction; (3) the state concealed evidence; and (4) the verdict was against the great weight and

preponderance of the evidence. 

II. Factual Background

The following factual background is taken from the opinion of the Fifth District Court of

Appeals.

Appellant had been staying with Darlene Moton and her two sons for

approximately one week before her seven-month-old son, Javaris, suffered head injuries. 

The day before Javaris was injured, appellant and Moton argued over her paycheck. 

Following the argument, Moton took her two sons and spent the night at her sister’s,

Carolyn Smith’s, apartment located in the same complex. On Saturday morning, Moton

went back to her apartment to get a change of clothes for herself and the boys. She took

her nephew with her because she was “kind of scared.” Appellant was in the apartment

but they did not speak.

Moton returned to Carolyn’s apartment and they all went to Denny’s for

breakfast. Javaris behaved well and ate a good breakfast. They returned to Carolyn’s

apartment and visited for a short while. Moton then returned to her apartment with the

boys. She placed Javaris in the baby swing. Appellant was in the apartment watching

television. Moton went to do the laundry. She took her other son, LaDarrius, with her. 

While doing the laundry, Moton was in and out of the apartment. Each time she returned,

she checked on Javaris. When he fell asleep, she moved him to her bed. 

Moton was carrying a load of clean laundry when she stopped to talk with a

friend at the bottom of the stairs. She heard Javaris “whine.” Her niece, Tarolyn Smith,

went to check on Javaris. She returned with Javaris. It was obvious something was

wrong with the baby. His face was blue, his eyes were rolled back, and he had a knot

above his ear. Moton and Carolyn rushed Javaris to the hospital. Appellant went with

them.

Dr. Christina Stiles, the emergency room physician at Presbyterian Hospital,

testified that Javaris was critically ill upon arrival. This was the worst head injury she

had ever seen in an infant. Dr. Stiles intubated Javaris to help him breathe. She had him

transferred to Children’s Medical Center.

 

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Dr. Donna Persaud attended to Javaris at Children’s Medical Center. Javaris had

multiple skull fractures. Dr. Persaud testified that Javaris would have shown symptoms

immediately after the injury. She also testified that she would expect an injury of this

degree to have resulted from a car accident where the child was unrestrained or from a

fall from a one-story building. In her opinion, Javaris had been injured by another

person.

Dr. Barry Hicks, a pediatric surgeon at Children’s Medical Center, testified that

Javaris was near death when he was brought into the hospital. He stated that the injury

could have occurred either that day or the day before.

Michael Kemp, a child abuse detective with the Dallas police department, went to

Children’s Medical Center that Saturday night to investigate the case. After obtaining

basic information about Javaris’s injury, he asked appellant, Moton and Carolyn to come

down to the station. All of them went voluntarily. Kemp took appellant’s statement. 

Another officer took statements from Moton and Carolyn. After comparing statements,

Kemp concluded that appellant had been Javaris’s sole caretaker. Appellant was

arrested.

McKnight v. State, No. 05-01-00768-CR (Tex. App – Dallas, Dec. 31, 2002), slip op. at 1-2.

III. Discussion

1. 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 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.

See 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

 

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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.

2. Ineffective Assistance of Counsel

Petitioner claims he received ineffective assistance of counsel because his counsel failed

to object to expert testimony by Doctors Christina Stiles, Barry Hicks and Donna Persaud. 

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

 

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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)).

Petitioner states his counsel was ineffective for failing to object to testimony by three

doctors who examined the victim on the day of the incident. Petitioner argues the testimony of

these witnesses was unreliable and irrelevant. Petitioner does not state why the testimony was

unreliable, nor does he state the basis for excluding this testimony. The testimony of these

witnesses was clearly relevant to determining the nature of the victim’s injuries, and a timeframe for the injuries. 

Additionally, Petitioner claims his counsel was unprepared for these witnesses. 

Petitioner does not explain how his counsel was unprepared, what type of further preparation his

counsel should have taken, or how further preparation would have altered the outcome of the

case. Petitioner’s claims of ineffective assistance of counsel are 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).

3. Insufficiency of the Evidence

Petitioner states there is a “material and fatal variance” between the indictment and the

evidence. He also argues the evidence did not support a finding of “knowledge” and that the

jury’s verdict was based on “the theatrics of the prosecutor” rather than any evidence linking

Petitioner to the crime. 

Respondent argues Petitioner’s insufficiency of the evidence claim is procedurally

 

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2

A claim of 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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barred. The records reflects that Petitioner raised his insufficiency of the evidence claim on

appeal, but he failed to raise the claim in his petition for discretionary review. Accordingly, the

Texas Court of Criminal Appeals has not reviewed the claim.2 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.

Petitioner has not presented his claims 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 the claims will result in a

 

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“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

these claims 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

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 these claims.

4. Brady v. Maryland

Petitioner argues the prosecution failed to disclose that the mother of the victim “had

been the subject of investigation in ‘another state’ for similar issues related to the abuse of her

children.” (Pet. at 7). 

To establish a claim for failure to disclose evidence under Brady v. Maryland, 373 U.S.

83 (1963), Petitioner must show that the prosecution suppressed favorable, material evidence

that was not discoverable through due diligence. Brady, 373 U.S. at 87. Evidence is “material”

if there is a “reasonable probability” that the outcome of the trial would have been different had

 

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the evidence been disclosed to the defendant. United States v. Freeman, 164 F.3d 243, 248 (5th

Cir. 1999). Brady, however, “does not obligate the State to furnish a defendant with evidence

that is fully available to the defendant through the exercise of reasonable diligence.” Kutzner v.

Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (citing Rector v. Johnson, 120 F.3d 551, 558 (5th Cir.

1997).

In this case, Petitioner failed to show that the prosecution had any knowledge that the

mother of the victim was previously investigated for abusing her children. Further, Petitioner

has submitted no evidence that such an investigation ever occurred. Petitioner’s conclusory

allegations are without merit and should be denied. 

5. 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 June 20, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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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, 150 (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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