Order – Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EDWIN WALLACE KILLIAN, JR., §

§

Petitioner, §

§

v. § Civil Action No. 3:05-CV-1742-L

§

NATHANIEL QUARTERMAN, et. al., §

§

Respondents. §

ORDER

Before the court is Killian’s Petition for Writ of Habeas Corpus, filed August 29, 2005.

Pursuant to Special Order 3-251, the petition was referred to United States Magistrate Judge Jeff

Kaplan, on August 29, 2005. On June 7, 2006, Magistrate Judge Kaplan recused himself, and the

case was assigned to United States Magistrate Judge Wm. F. Sanderson, Jr. On January 16, 2007,

the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”)

was filed. After receiving an extension of his deadline, Petitioner filed objections to the Report on

February 13, 2007. 

This is a habeas petition filed pursuant to 28 U.S.C. § 2254. Petitioner, a state inmate

sentenced to imprisonment for seventeen years for intoxication manslaughter, brings this petition

to challenge his conviction on multiple grounds. First, he contends that he received ineffective

assistance of counsel because of various acts and omissions in the preparation and trial of his case.

Second, Petitioner contends that the State deliberately destroyed a blood sample obtained on the date

of the fatal accident, and the destruction prevented him from independently testing the sample.

Third, Petitioner contends that there was no evidence establishing a causal connection between his
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alleged intoxication and the death and serious bodily injury. Fourth, Petitioner contends that he did

not voluntarily and intelligently waive his right to testify during trial. Fifth, Petitioner contends that

the trial court erred by refusing to submit his requested instruction on a lesser-included offense

(driving while intoxicated) to the jury. Sixth, Petitioner contends that the admission of hearsay

testimony violated his constitutional right to confrontation. Finally, Petitioner contends that the

admission of allegedly flawed retrograde extrapolation evidence violated his due process rights. 

The magistrate judge made the following findings: (i) Petitioner failed to establish that his

trial attorneys rendered ineffective assistance of counsel, (ii) Petitioner failed to present evidence

that anyone connected with the district attorney’s office or the responsible law enforcement agencies

was involved with the destruction of the blood sample obtained on the date of the accident, (iii)

Petitioner is barred from making an insufficiency of the evidence argument for federal habeas review

because he failed to make this argument in his petition for discretionary review to the Texas Court

of Criminal Appeals, (iv) the factual findings of the trial court in Petitioner’s state habeas application

forecloses relief on his claim that he did not voluntarily and intelligently waive his right to testify

during trial, (v) the trial court did not err by refusing to submit his requested instruction on driving

while intoxicated to the jury because authority from the United States Court of Appeals for the Fifth

Circuit (“Fifth Circuit”) states that a federal constitutional issue is not raised by the failure to give

an instruction on a lesser included offense in a non-capital case and the Untied States Supreme Court

has not held otherwise,(vi) Petitioner’s constitutional right to confrontation was not violated by the

admission of hearsay evidence because the witnesses in question appeared at trial and were subject

to cross-examination, and (vii) in light of the other evidence adduced at trial, the extrapolation
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evidence was not crucial, critical, and highly significant evidence so as to violate Petitioner’s due

process rights.

Petitioner objects only to the magistrate judge’s findings and conclusions on his ineffective

assistance of counsel claim and his claim that the trial court erred by refusing to include a jury

instruction on a lesser offense. The court addresses each objection separately.

Petitioner makes several objections to the magistrate judge’s findings and conclusions on his

ineffective assistance of counsel claim. First, Petitioner objects to the magistrate judge’s finding

“that he did not receive ineffective assistance based on his attorney’s advice to him to not testify in

order to avoid impeachment based on his prior convictions, all of which were misdemeanors and not

proper subjects for impeachment.” Pet.’s Obj. ¶ 1. The court finds that Petitioner’s attorney gave

him no such advice. The record reflects that William Trantham (“Trantham”), Petitioner’s trial

counsel, never advised him not to testify. State Habeas Tr. 12: 10-12, Jan. 21, 2005. Further,

Trantham’s advice regarding Petitioner’s misdemeanor convictions must be reviewed in context.

When asked about his discussion with Petitioner whether he should testify, Trantham stated the

following:

We had long discussions from very early on that getting

acquitted when the defendant doesn’t take the stand is difficult at

best, originally about 99 percent, I think it is, when they don’t take

the stand. And his best shot at being acquitted would be if he did

take the stand. He had some misdemeanor offenses in his past, he’d

been a bookie and a gambler and so on and so he’s had some scrapes

with the law, nothing serious.

We told him those could be used against him at some point

possibly, might not be at some point. But if he did take the witness

stand, that anything that was said, of course, would be used against

him. That he had to be cautious, that he shouldn’t engage in disputes

with the prosecutors, that he shouldn’t be argumentative. The typical

thing you tell a client to testify on. 
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Id. at 12:15-25, 13:1-5. After explaining Petitioner’s chances of being acquitted if he chose not to

testify, Trantham told Petitioner that his misdemeanor convictions could possibly be used against

him at some point. This statement does not appear to be limited to impeachment. If Petitioner put

his character in issue during his testimony, the prosecution would be allowed to introduce the

misdemeanor convictions to rebut. See Tex. R. Evid. 404(a)(1)(A). Also, the prosecution provided

notice in advance of trial of its intent to introduce evidence of Petitioner’s other crimes in its case-inchief. State Habeas R. at 23. Although this evidence was not admissible to prove Petitioner’s

character in order to show action in conformity therewith, it could have been admitted for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. See Tex. R. Evid. 404(b). Therefore, the court determines that

Tratham’s advice was not contrary to law and did not constitute ineffective assistance of counsel.

Accordingly, the court overrules this objection.

Second, Petitioner objects to the magistrate judge’s finding that the state court’s credibility

determination forecloses relief on his ineffective assistance of counsel claim based upon counsel’s

failure to have blood evidence preserved and independently tested. The court agrees with the

magistrate judge. At the habeas hearing, Petitioner testified that Trantham was hired shortly after

his arrest. Trantham testified that he could not recall when he was hired, but recalled that a few days

after he was retained he obtained another attorney, Rikki Rutchik (“Rutchik”), to assist him.

Rutchik testified that she was hired a year after the accident and after the blood sample had been

destroyed. The state court determined that the testimony of Trantham and Rutchik was credible and

worthy of belief, and this determination is presumed to be correct. See 28 U.S.C. § 2254(e)(1).

Although Petitioner is required to rebut this presumption with clear and convincing evidence, he has
1

716 F.2d 301, 310 (5th Cir. 1983).

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failed to do so. He merely points to the conflicting testimony and argues that “[i]t is an unreasonable

determination of the facts to conclude that counsel was not hired in time to preserve and test the

blood sample.” Pet.’s Obj. ¶ 2. This statement is conclusory and a far cry from being clear and

convincing evidence. Because Petitioner fails to rebut the presumption of correctness of the state

court’s determinations with respect to his ineffective assistance of counsel claim based upon

counsel’s failure to have blood evidence preserved and independently tested, the claim fails and his

objection is overruled. Based on this ruling, the court does not reach Petitioner’s objection to the

magistrate judge’s finding that no prejudice resulted from counsel’s failure to have the blood sample

preserved and independently tested.

Third, Petitioner objects to the magistrate judge’s conclusion that counsel’s decision not to

object in every instance in which a viable objection might be lodged was consistent with the

objectively reasonable assistance of counsel required under the Sixth Amendment to the United

States Constitution. He argues that this conclusion is contrary to established federal law regarding

ineffective assistance of counsel and cites United States v. Rusmisel1 for the proposition that “even

if an attorney’s manner of conducting a trial is trial strategy[,] it can be so ill chosen as to constitute

ineffective assistance.” Pet.’s Obj. ¶ 3. In Rusmisel, counsel for the defendant failed to object to

prosecutorial questions about various witnesses’ personal drug use after the offense and chose

instead to continue the line of irrelevant questioning with the prosecution’s witnesses. According

to the prosecution, defense counsel “might reasonably have concluded that having all of the

witnesses discredited as unreliable drug users offered the best prospect of acquittal for his client.”

Rusmisel, 716 F.2d at 308 (internal quotation marks omitted). The court found that, given the
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primary thrust of the prosecution’s case (that its witnesses had abandoned drugs and the drug culture

and defendant had not), defense counsel could not have reasonably determined “that allowing the

Government to paint the defense witnesses black and responding in kind offered a good chance of

acquittal for his clients” and that counsel’s “‘strategy’ was so ill chosen that it rendered the trial

fundamentally unfair.” Id. at 310. The court was clear that “a conscious and informed decision on

trial tactics cannot be the basis for constitutionally ineffective representation unless it is so ill chosen

that it permeates the entire trial with obvious unfairness.” Id. (internal citation and quotation marks

omitted). Petitioner fails to explain how counsel’s conscious and informed decision to forego certain

objections to avoid appearing overbearing or confrontational to sympathetic witnesses and to not

bring attention to such witnesses permeated the entire trial with obvious unfairness. Therefore, the

court overrules this objection.

In his third objection, Petitioner also states that the magistrate judge “incorrectly found that

victim impact evidence from the alleged victims was admissible on the guilt-innocence phase.”

Pet.’s Obj. ¶ 3. “‘Victim impact’ evidence is evidence of the effect of an offense on people other

than the victim.” Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App.) (emphasis in original),

cert. denied, 128 S.Ct. 282 (2007). Because the evidence at issue here was evidence of the effect

of the offense on the victims, it is not victim impact evidence. Therefore, the court overrules this

objection.

Fourth, Petitioner objects to the magistrate judge’s conclusion that counsel’s failure to object

to hearsay testimony that he ran the red light did not constitute ineffective assistance of counsel.

According to Petitioner, one of the prosecution’s witnesses, Patrick Hennessy, testified that a man

on the corner said that he had the green light, and this testimony violated his right to confront
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witnesses. Assuming that counsel’s failure to object fell below an objective standard of

reasonableness, Petitioner has not proved that he was prejudiced by this failure. Other prosecution

witnesses also testified that Petitioner ran a red light. The jury could have believed them without

the admission of the hearsay statement. Therefore, the court finds that Petitioner has failed to prove

that there is a reasonable probability that the result of the proceeding would have been different but

for counsel’s failure to object to this testimony. The court overrules this objection.

Fifth, Petitioner objects to the magistrate judge’s conclusion that counsel’s failure to object

to certain comments made by the prosecution during closing arguments did not constitute ineffective

assistance of counsel. He argues that the following language was objectionable: 

You got to be kidding me. That is insulting. That should sicken you.

Blames everything on Patrick Hennessy. It was his fault. If you

believe that for one second, I’m gonna tell you to find him not guilty.

You go back there and 12 of you vote not guilty. And you send him

on his way. Because it’s ludicrous.

Trial Tr. vol. 5, 24: 17-22, Sept. 21, 2000. Petitioner contends that the argument was an attack on

him over the shoulders of counsel and that it was harmful and contrary to due process standards, but

he fails to show how he was harmed or why the statement was contrary to due process standards.

Although the argument was aggressive and emphatic, the prosecutor in essence told the jury that

Petitioner’s story was preposterous and not worthy of belief. Such an argument was a response to

defense counsel’s argument, and did not strike at Petitioner over the shoulders of defense counsel

or inflame the jury to his prejudice. It was proper jury argument. See Berry v. State, 233 S.W.3d

847, 859 (Tex. Crim. App. 2007) (“Permissible jury argument generally falls into one of four areas:

(1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the

argument of opposing counsel; or (4) a plea for law enforcement.”). Moreover, improper
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“prosecutorial remarks are a sufficient ground for habeas relief only if they are so prejudicial that

they render the trial fundamentally unfair.” Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir. 2002),

cert. denied, 540 U.S. 1218 (2004). “Such unfairness exists only if the prosecutor’s remarks evince

either persistent and pronounced misconduct or . . . the evidence was so insubstantial that (in

probability) but for the remarks no conviction would have occurred.” Id. at 245 (internal quotation

marks and citation omitted). Without the prosecutor’s allegedly improper remarks, there was more

than sufficient evidence for the jury to find Petitioner guilty beyond a reasonable doubt of the crime

for which he was convicted. Petitioner’s bare-bone conclusory allegations are insufficient to

convince the court otherwise. Therefore, the court overrules this objection. 

Sixth, Petitioner objects to the magistrate judge’s conclusion that defense counsel’s failure

to request a parole charge was harmless error. Petitioner contends that “[a] proper analysis would

have concluded that the jury would likely have given a lower sentence had they been properly

instructed.” Pet.’s Obj. ¶ 6. This argument lacks merit. “The instruction was designed to increase

jury sentences.” Grigsby v. State, 833 S.W.2d 573, 576 (Tex. App.–Dallas 1992, pet. ref’d).

Moreover, as the magistrate judge correctly stated, “Texas courts generally agree that the state, not

a defendant, benefits from the parole instruction.” Rpt. 9, n.5 (citing Arnold v. State, 786 S.W.2d

295, 298 (Tex. Crim. App.), cert. denied, 498 U.S. 838 (1990); see also Grigsby, 833 S.W.2d at 576.

The state court conducted a thorough harm analysis and determined that Petitioner failed to prove

actual harm. Petitioner has not shown how this decision was based on an unreasonable application

of clearly established federal law or on an unreasonable application of facts in light of the evidence

presented in the state proceeding. Therefore, the court overrules this objection. 
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Seventh, Petitioner objects to the magistrate judge’s conclusion that defense counsel’s jury

argument that he “was not the finest society has to offer” did not constitute ineffective assistance

of counsel. Pet.’s Obj. ¶ 7. After review of the record and the magistrate judge’s reasoning, the

court agrees with the magistrate judge’s conclusion. Therefore, the court overrules this objection.

Eighth, Petitioner objects to the magistrate judge’s conclusion that he has failed to show

prejudice by defense counsel’s failure to preserve error for his challenge for cause to venire person

Diane Mullenix. Petitioner contends that he was prejudiced because had the error been preserved,

his conviction would have been reversed. The court disagrees. To preserve error for a trial court’s

denial of a challenge for cause in the criminal context, Petitioner must “(1) use all of his peremptory

strikes; (2) ask for and be refused additional peremptory strikes; and (3) be forced to take an

identified objectionable juror whom [he] would not otherwise have accepted had the trial court

granted his challenge for cause or granted him additional peremptory strikes. Garcia v. State, 16

S.W.2d 401, 408-09 (Tex. App.–El Paso 2000, pet. ref’d). Diane Mullenix was not seated as a juror.

Therefore, Petitioner was not forced to take her because of the court’s ruling. Moreover, Trantham

testified that he and his co-counsel were “satisfied with the jury” and that he did not consider the

denial of the request to be important. State Habeas Tr., 33: 1-3. Defense counsel apparently did not

believe that there was any objectionable juror that Petitioner was forced to take as a result of the

court’s denial of their strike for cause. The Texas Disciplinary Rules of Professional Conduct (the

“Disciplinary Rules”) prohibit attorneys from making frivolous assertions. Tex. Disciplinary R.

Prof’l Conduct 3.01, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon Supp. 2005)

(Tex. State Bar R. Art. X, § 9). An assertion is frivolous “if the lawyer is unable to make a good

faith argument that the action taken is consistent with existing law” or “if it contains false statements
2

The Texas Disciplinary Rules of Professional Conduct also includes other definitions of “frivolous”

that do not apply to this case. See Id.

3

In ruling on these objections, the court was often required to surmise or glean the possible arguments

in support of the objections, because they were not stated with any degree of particularity. This is not the first

habeas petition filed by counsel in which highly conclusory objections have been made. In the future, the

court expects counsel to state his objections and supporting arguments with particularity. It is not incumbent

on the court to surmise or glean the nature of counsel’s argument, and it will not do so on future habeas

petitions.

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of fact.” 2 Id. at cmts. 2-3. Because defense counsel did not believe it to be true, the Disciplinary

Rules prohibited them from arguing that Petitioner was forced to take an identified objectionable

juror whom he would not have otherwise accepted had his challenge for cause been granted. That

Petitioner was forced to take an identified objectionable juror is a required element to preserve error

for denial of a challenge for cause, and the record does not support that this was the case. Petitioner

was not prejudiced by counsel’s failure to make a frivolous argument on his behalf. Therefore, the

court overrules this objection.

Ninth, Petitioner objects to the magistrate judge’s conclusion that counsel’s failure to object

to the retrograde extrapolation evidence did not constitute ineffective assistance of counsel. After

review of the record, the magistrate judge’s reasoning and conclusion, and the applicable law, the

court agrees with the magistrate judge’s conclusion. Therefore, the court overrules this objection.

Petitioner also objects to the magistrate judge’s conclusion that the trial court’s failure to

give an instruction on a lesser included offense did not raise a federal constitutional issue. He

concedes that this conclusion is consistent with Fifth Circuit authority, but asserts in a conclusory

fashion that the Fifth Circuit authority is contrary to United States Supreme Court authority. After

review of the applicable law and the magistrate judge’s conclusion, the court determines that the

magistrate judge is correct. Therefore, the court overrules this objection.3
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Having reviewed the petition, file, record, Report, and applicable law in this case, the court

determines that the findings and conclusions are correct. The magistrate judge’s findings and

conclusions are therefore accepted as those of the court. The court therefore denies the petition for

writ of habeas corpus writ of habeas corpus, and this action is hereby dismissed with prejudice.

It is so ordered this 9th day of September, 2008.

_________________________________

Sam A. Lindsay

United States District Judge