IN THE LINITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CORY EUGENE WINDLAND

Petitioner.

VS.

RICK THALER, Director

Texas Department of Criminal Justice,

Correctional Institutions Division

Respondent.

$

$

$

$

$

$ NO.3-os-CV-2438-K

$

$

$

$

$

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Corey Eugene Windland, a Texas prisoner, has filed an application for writ of

habeas corpus pursuant to 28 U.S.C .5 2254. For the reasonstated herein, the application should

be denied.

I.

A Dallas County grand jury charged petitioner in separate indictments with the capital

murders ofEmily Meyer and Felipe Villanueva. The indictments alleged that petitioner intentionally

caused the death of the victims while in the course of committing or attempting to commit the

offense of robbery. After a jury found petitioner guilty of both capital mutdets, the trial court

assessed punishment at life imprisonment in each case. Petitioner challenged his convictions on

direct appeal and state collateral review. The state appeals court affirmed in an unpublished opinion.

Windland v. State. Nos. 05-03-01519-CR &05-03-01520-CR, 2004 WL 1166494 (Tex. App.--

Dallas, May 26,2004,no pet.). The Texas Court of Criminal Appeals denied post-conviction relief

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 1 of 14 PageID 186
without written order. Ex parte Windland, WR-61,813-02 (Tex. Crim. App. Oct. 19, 2005).

Petitioner then filed this action in federal district court.r

il.

Petitioner raises three broad issues in six grounds for relief: (l) the evidence was legally and

factually insufficient to support his convictions; (2) the trial court improperly admitted certain

evidence; and (3) he received ineffective assistance ofcounsel.

A.

The standard ofreview in federal habeas cases is governed by the Antiterrorism and Effective

DeathPenaltyActof 1996("AEDPA"). SeePub.L. 104-132,110Stat. I2l4(1996). Where,ashere,

a state court has already rejected the claims raised by petitioner, a federal court may grant habeas

relief only if the state court adjudication:

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

determination of the facts in light of the evidence presented in the

State court Proceeding.

28 U.S,C. 5 225a@); see also Williams v. Taylor,529 U.S. 362,411-13, 120 S.Ct. 1495, 1522'24,

146L.Ed.2d 389 (2000). A state court decision is contrary to clearly established federal law if "it

relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches

a different conclusion than the Supreme Court on materially indistinguishable fasts." Busby v.

Dretke,359 F.3d 708,713 (5th Cir.), cert. denied,l24 S.Ct. 2812(2004),citingWilliams,l20 S'Ct.

, This court originally dismissed petitioner's federal writ because it was filed one day after the expiration of the

AEDPA statute of limitations. Ll/indlandv. Dretke,No.3-05-CV-2438-K,2006 WL 1391435 (N.D. Tex' May 18, 2006).

In making that determination, the court did not include the date petitioner filed his state writ in calculating the AEDPA

tolling period, ld.,2006 WL 1391435 aI*2, citing 28 U.S.C. 5 2244(d)(2). The Fifth Circuit reversed, holding that

a state petition for habeas relief is "pending" for tolling purposes on the day it is filed through and including the day it

is resolved. Ilindland v. Quarterman,578 F.3d 314, 317 (5th Cir' 2009)'

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 2 of 14 PageID 187
at 151 9-20. A decision constitutes an "umeasonable application" of clearly established federal law

if "the state court identifies the correct governing legal principle from [the] Court's decisions but

unreasonably applies that principle to the facts of the prisoner's case." Williams,120 S.Ct. at 1523.

To be unreasonable, the application of clearly established federal law must be more than merely

incorrect. Gardnerv.Johnson,247F.3d551,559(5thCir.200l). Thestandardisoneof"objective

reasonableness." Montoyav. Johnson,226F.3d399,404 (5th Cir.2000), cert. denied,l2l S.Ct.

2220 (2001), citing Williams, 120 S.Ct. at l52l-22 (O'Connor, J., concurring). Factual

determinations made by state courts are presumed to be correct and are unreasonable only where the

petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C.

$ 22sa(eXl).

B.

In two grounds for relief, petitioner contends that the evidence was legally and factually

insufficient to support his convictions for capital murder because the state failed to prove that he

intended to rob the victims prior to or at the time of the murders. Respondent counters that these

claims are procedurally baned from federal habeas review'

1.

A federal court may not consider the merits of a habeas claim if a state court has denied relief

due to a procedural default. Sawyer v. Witley,505 U.S, 333,338, 112 S.Ct. 2514,2518, 120

L.p;d.2d269 (1992). The state court opinion must contain a "plain statement" that its decision rests

on adequate and independent state grounds. Hatis v. Reed,489 U.S. 255,261, 109 S.Ct 1038,

t042,103L.Ed.2d308(1989);Smithv.collins,977F.2d95l,955 (5thCir. 1992),cert.denied,ll4

S.Ct. 97 (1993). To be an adequate ground for denying relief, the state procedural rule must be

strictly or regularly applied to similar claims. See Hathorn v. Lovorn, 457 U.S. 255,262-63,102

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 3 of 14 PageID 188
S.Ct. 2421,2426,72 L.Ed.2d 524 (1982); Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir. 1999),

A petitioner can overcome aprocedural default only by showing: ( I ) cause for the default and actual

prejudice; or (2) that the application of the state procedural bar would result in a fundamental

miscarriage of justice . See Smith v. Johnson, 216 F.3d 521, 524 (5th Cfu. 2000).

2.

Although petitioner challenged both the legal and factual sufficiency of the evidence on direct

appeal, he did not file a petition for discretionary review. Instead, these claims were presented to

the Texas Court of Criminal Appeals for the first time in an application for state post-conviction

relief. Because Texas law does not allow a prisoner to collaterally attack the sufficiency of the

evidence in a writ of habeas corpus, see Ex parte Easter,6l5 S.W.2d 719,721(Tex. Crim' App.),

cert. denied, 102 S.Ct.481 (1981),2 the claims were denied without written order. Ex parte

ll/indland, WR-61,813-02 at cover. Such a disposition means that petitioner's legal and factual

sufficiency claims were rejected on state procedural grounds. Ex parte Grigsby, 137 S.W'3d 673,

674 (Tex. Crim. App. 2004) ("[W]here an applicant challenges the sufficiency of the evidence on

an application for a writ of habeas corpus, and we subsequently dispose of the application by

entering a denial without written order, the applicant's sufficiency claim was denied because the

claim is not cognizable ."); see also Salazar v. Dretke, 419 F.3d 384, 398-99 (5th Cir. 2005), cert.

denied,l26 S.Ct. 1467 (2006). Petitioner is therefore procedurally baned from challenging the

2 Texas law permits a defendant to raise a "no evidence" claim for the first time on collateral review where the

conviction is totally devoid of any evidentiary support. See Ex parte Barfield,697 S.W.2d 420, 421 (Tex. Crim. App.

1985):ExparteColeman,599S.W.2d305,307(Tex.Crim.App.l978). However,whereadefendantmerelychallenges

the sufficiency of the evidence to support a conviction, such a claim must be raised on direct appeal. See Ex parte

Ll/illiams,703 S.W.2d 674,679-80 (Tex. Crim. App. l986). The crux of petitioner's claim is that he robbed the victims

after the murders "as a mere afterthought[.]" (See Pet. Mem. at 4). Such an argument implicates the suffrciency of the

evidence and cannot be litigated under the guise of a "no evidence" claim. See Robersonv. Quarterman, No' 3-07-CV0339-8, 2007 WL4373267 at*2 n.3 (N.D. Tex. Dec. 13,2007)(citingcases), COA denied,No.08-10760 (5th Cir. May

l l, 2009).

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 4 of 14 PageID 189
sufficiency of the evidence on federal habeas review. See Renz v. Scott,28 F.3d 431,432 (5th Cir.

1994); Roberson v. Quartermar, No. 3-07-CV-0339-8, 2007 WL 4373267 at *2 (N.D. Tex. Dec.

13,2007), COA denied, No. 08-10760 (5th Cir. May 11,2009).

3.

Even if petitioner's sufficiency claims were not procedurally barred, he is not entitled to

relief. A federal court may not disturb a state criminal conviction unless no rational trier of fact

could have found the elements of the offense beyond a reasonable doubt. Jaclcson v. Virginia,443

U.S. 307, 319,99 S.Ct. 2781 ,2789,61L.Ed.2d 560 (1979); Gibsonv. Collins,947 F.2d 780, 781

(5th Cir. l99l), cert. denied,l 13 S.Ct. 102 (1992). The evidence must be viewed in the light most

favorable to the verdict. Jaclrson, gg S.Ct. at2789; Gibson,947 F.2d at 781. At trial, there was

ample evidence that petitioner and his brother, Jimmy Windland, murdered Emily Meyer and Felipe

Villanueva while in the course of committing robbery. The murders occured after Emily and Jimmy

got into a fight about "getting the drugs, having the money paid up front." As the state appeals court

noted:

[T]he evidence shows Jimmy went through Felipe's pockets after he

shot Felipe but while Felipe was still alive. Having found a

switchblade in Felipe's pockets, Jimmy stabbed Felipe who continued

to gasp for air for another ten minutes. During those ten minutes,

Jimmy and appellant went through Emily's and Felipe's personal

belongings. Jimmy counted the money and went throughthe victims'

belongings while Felipe lay dying. Viewed in the light most

favorable to the judgment, we conclude a rational jury could infer,

from these facts, that appellant intentionally committed Emily's and

Felipe's murders in the course of committing or attempting to commit

robbery.

Windland,2004WL 1166494 at *3. Petitioner has failed to show that this decision was based on

an uffeasonable determination of the facts in light of the evidence presented attrial.

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 5 of 14 PageID 190
Nor can petitioner challenge the factual sufficiency of the evidence. Under Texas law,

intermediate appellate courts have the authority to review fact questions in criminal cases. Clewis

v. State,922S.W.2d126,l29 (Tex. Crim. App. 1996). This "factual sufficiency" reviewof the

evidence is broader than a "legal sufficiency" challenge under Jaclcson. Id. lnstead of viewing the

evidence in the light most favorable to the prosecution and determining whether "any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt," a factual

sufficiency inquiry views all the evidence to determine whether the verdict "is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust." Pruitt v. Coclcrell, No. 3-

00-CV-l 713-H,2001 WL I I 15339 at * l3 0{.D. Tex. Sept. 14,2001), quoting Clewis,922 S.W .2d

at 129. The power of state appellate courts to review the factual sufficiency of the evidence derives

fromTexasstatutoryandconstitutionalauthority. Id.at*14,citingClewis,922S.W.2dat129-30,

and Bigby v. State,892 S.W.2d 864,874-75 (Tex. Crim. App. 1994), cert. denied,l l5 S.Ct. 2617

(1995). There is no corresponding right of review under the United States Constitution. Id.; see also

Daisyv. Dretke,No.3-04-CV-2015-D,2004WL3167743 at *2 (N.D. Tex. Dec.21,2004) (citing

cases), COA denied, No. 05-10052 (5th Cir. Nov. 9, 2005).

C.

Next, petitioner complains that the trial court improperly admitted into evidence a poem

written by Jimmy, gruesome photographs of Felipe's charred body, and the hearsay testimony of

Leanna Parker. Evidentiary rulings are cognizable on federal habeas review only if the petitioner

can demonstrate that the enoneous admission of evidence violated his constitutional rights. See

woodv. Quarterman,503 F.3d408, 414(sthCir.2007),cert. denied,l23 s.ct. 1874(2008). "[T]he

admission of evidence may violate the Due Process Clause of the Fourteenth Amendment if the

evidence is 'so unduly prejudicial that it renders the trial fundamentally unfair,"' Id., quoting Payne

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 6 of 14 PageID 191
v. Tennessee,50l u.s.808,825, I l l S.Ct. 2597,2608,115 L.Ed.2d720 (1991). Eventheenoneous

admission ofprejudicial evidence does not justifu habeas relief "unless the evidence played a'crucial,

critical, and highly significant'role in the [verdictf ," Jacl<son v. Johnson,l94 F.3d 641,656 (5th Cir.

lggg), cert. denied,l20 S.Ct. 1437 (2000), quoting Little v. Johnson,162F.3d855,862 (5th Cir.

1998), cert. denied,l l9 S.Ct. 1768 (1999).

l.

During his direct examination of Dallas police detective Jesus Trevino, the prosecutor

introduced into evidence a stack of paperwork seized from petitioner's residence pursuanto a search

warrant. (See SF-V at 10-11). One of those documents was a poem allegedly written to petitioner

by his brother, Jimmy, about the murders. (ld. at 12 & St. Exh. 30). Defense counsel objected that

the document was hearsay and not properly authenticated, but the trial court ovemrled the objection

and admitted the poem into evidence. (ld. at l2). The prosecutor then asked Trevino to read two

passages from the poem to the jury. The first excerpt read:

I hope it worked locc [sic] remember when the pistol smoke, cleared

out the room I dumped them bodies for you kenfolk [sic].

(Id. at 13 & St. Exh. 30). The second passage read:

But someday all you'll have is what you threw away,but Blu won't be

there for yorr cuzz, on that f------ day.

You dissed us all for some pussy that's all that I know, you even f-----

yourself not showing back up for parole'

It's all good C, so this is how it's gonna be, but remember when you

wear my clothes and watch mY T.V.

And pet my dog, and f--- my wife, and when you tie my shoes, you

f---- me good, I did[n]'t do a f------ thing to you.

Hope it was worth it fool, and f--- the s--- that we went through, my

brothers dead to me, I'm gonna f----- miss you fool!

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 7 of 14 PageID 192
(Id. at l4 & St. Exh. 30). On direct appeal, the state court held that the poem was hearsay and should

not have been admitted into evidence. LYindland,2004WL 1166494 at*4. However, the appeals

court determined that petitioner was not harmed by the admission of the poem because "[t]he State

provided ample evidence, including eyewitness testimony, establishing that appellant and his brother

shot and stabbed Emily and Felipe, then dumped their bodies." /d

A review of the state court record supports that determination. Before the poem was

admitted into evidence, the jury heard from Leanna Parker, a neighbor and confidant of petitioner,

who testified that petitioner confessed to her about his role in the murders of Emily and Felipe.

According to Parker, petitioner said "there were problems with the boy and the girl," and that he and

Jimmy "were getting ready to jack them." (SF-IV at2l4). When asked what petitioner told her

about the murders, Parker explained:

It's my understanding that the boy was standing in the entry to the kit-

-the kitchen, and when--when the--when the incident went down and

the--and the jack move came to take place, which the altercation, I

understand that, from what he told me, [Felipe] had a gun in his back

and [Jimmy] took the gun. Shot fFelipe] with it. Turned and shot

Emily. Turned and shot [Felipe] again because he wasn't--he

wouldn't dying. He was breathing. So there was a lot of blood' He

explained to me there was a lot of blood.

I know he took the gun from [Felipe]. And at that time, is

when they were--that's what I can remember right now. I know what

I wrote and I know what I said a month ago but--

a. Well, do you remember telling the police or relating to the

police what [petitioner] told you about why they were going to jack

this couple?

A. Because when they came back--when they had been there on

a day or two earlier, they were having an issue with some--some type

of gangster re--retaliation or--or boy things.

rft :* ,1. r|<

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 8 of 14 PageID 193
a. Do you remember any other details that [petitioner] told you

about the double murder that happened next door to you?

A. Yeah.

a. What was that, please?

A. I remember that he said there was a lot of blood and it was

quite a bit of mess than--than what he had anticipated' It was

overwhelming the--the--the way that the blood was a mess'

I understand thatthe boy was making a clicking noise and he--

he wouldn't die. They--apparently [Jimmy] was the one who putthe--

the plastic bag over his head. And that the more times that the-that

he would suff--he eventually would die a little bit more. You know,

he wasn't making the clicking noise as much as the plastic bag was

going in and out of his mouth.

(ld. at214-17). Parker also told the jury that petitioner took her through the apartment where the

murders occurred, explained how he helped clean up the crime scene, and described how he and his

brother burned the bodies of the murder victims by setting a car on fire. (ld. at2l9-25). Another

witness, Corine DeJong, was in the apartment at the time of the murders. DeJong described

petitioner's role in the offense, including dragging Emily into the kitchen area and shooting a gun

in her direction. (See id. at 103-09). In view of this evidence, which was not objected to by defense

counsel, it is difficult to envision how petitioner was harmed by the admission of the poem. See

United States v. Hall.500 F.3d 439, 444 (5th Cir. 2007) (erroneous admission of cumulative

evidence is harmless error).

2.

Petitioner also challenges the admission into evidence of a black and white photocopy of a

photograph depicting Felipe's charred body. "The admissibility ofphotographs of homicide victims

is a matter of Texas law." Rodriguez v. Quarterman, 535 F.Supp.2d 820,844 (S.D. Tex. 2007),

affd,327 Fed.Appx. 466,2009 WL 1180898 (5th Cir. May 4,2009), cert. denied,2009 WL

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 9 of 14 PageID 194
3348026 (U.S. Oct. 20,2009). In order to obtain federal habeas relief, petitioner must show that the

admission of this evidence was so unduly prejudicial that it "renders the entire trial fundamentally

unfair." Id., citing Trussell v. Estelle, 699 F.2d 256, 259 (5th Cir.), cert. denied, 104 S.Ct. 168

(1983); see also Payne,l 1 1 S.Ct. at2608. Petitioner cannot meet this heavy burden. In rejecting

this claim on direct appeal, the state court wrote:

The record before this Court contains a black and white photostatic

copy of the photograph. The photo depicts Felipe's body after it had

been removed from the car. Detective Wojcik testified Felipe was

face down on the floorboard. Thus, this is the only photograph of the

front part of his body and, as such, is the only visual evidence

illustrating the complete condition of the body when it was found. It

also aids in depicting the nature and extent of Felipe's wounds. After

reviewing this and the other photographs admitted at trial, we

question whether this photograph is any more "gruesome" than the

others admitted at trial. Nevertheless, we conclude it is not so

gruesome as to be unfairly prejudicial.

Windland,20Q4 WL 1166494 at *5. The adjudication of this issue by the state appeals court was

both legally and factually reasonable. See, e.g. Jones v. Butler,864F.2d 348, 368 (5th Cir. 1988),

cert. denied,l0g S.Ct. 2090 (1989) (photographs of female murder victim, including photo of cut

on gums with lips pulled back, photo of buttocks with blood trickling down from genital area, and

photo of victim's legs spread apart to show vagina, were not so inflammatory as to plainly outweigh

evidentiary value).

3.

Petitioner's challenge to the hearsay testimony of Leanna Parker is procedurally baned.

Under Texas law, a party must make a timely and proper objection to preserve a claim for appellate

review. See Turner v. State,805 S.W.2d 423,431 (Tex. Crim. App.), cert. denied,ll2 S.Ct.202

(1991). The objection must state "the grounds for the ruling that the complaining party sought from

the trial court with sufficient specificity to make the trial court aware of the complaint, unless the

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 10 of 14 PageID 195
specific grounds were apparent from the context[.]" TBx. R. App. P. 33.1(aXl)(A). This

"contemporaneous objection" rule constitutes an adequate state procedural bar for purposes of

federal habeas review. See Styronv. Johnson,262F.3d438,453-54 (5th Cir.200l), cert. denied,

t22 S.Ct. rtTs (2002).

Defense counsel did not object to Parker's testimony on hearsay grounds. As a result, the

statehabeascourtrefusedtoconsiderthisclaimonthemerits. Windland,WR-61,813-02,Tr.at64,

!l 3. Petitioner is therefore barred from litigating this issue in federal court. See Styron,262F.3d

at 453-54.

D.

Finally, petitioner contends that he received ineffective assistance of counsel because his

attorney: (l) failed to call Jimmy Windland and Lisa Pam as defense witnesses; (2) did not request

a jury instruction on self-defense against multiple assailants; (3) never asked the court reporter to

make a record of bench conferences; and (4) conceded guilt during closing argument. Only the last

claim was specifically raised on direct appeal or state collateral review and is properly exhausted.

See, e.g. Thomos v. Collins,9l9F.2d333,334-35 (5th Cir. 1990), cert. denied, l7l 5.Ct.2862

(1991) (unrelated claims of ineffective assistance of counsel raised in state writ does not satisfy

exhaustion requirement). While a federal court has limited discretion to stay a habeas petition and

hold it in abeyance so a prisoner can return to state court to exhaust his previously unexhausted

claims, see Rhines v. Weber,544 U.S. 269,275,125 S.Ct. 1528, 1533-34, 161 L.Ed.zd 444 (2005),

Texas law prohibits a prisoner from filing a second or successive habeas petition if the grounds

stated therein could have been, but were not, raised in a prior state writ. See Tnx. CopB Cruu. PROC.

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 11 of 14 PageID 196
ANN. art. 11.07, $ 4 (Vernon 2005).3 This procedural bar also applies to unexhausted claims if the

state court would likely dismiss a successive habeas petition under article 11.07, $ 4. See Coleman

v. Thompson,50lIJ.S.722,735 n.l, I I I S.Ct.2546,2557 n.l, I l5 L.Ed.2d640 (1991) (procedural

default occurs when prisoner fails to exhaust available state remedies and "the court to which the

petitioner would be required to present his claims in order to meet the exhaustion requirement would

now find the claims procedurally barred"). The court finds that a Texas court, if presented with a

successive writ filed by petitioner, would likely find it barred. Consequently, federal habeas relief

is not proper with respecto petitioner's unexhausted claims. Coleman, l1l S.Ct. at2557 n'1; see

also Gruenfelder v. Quartermare, No. 3-07'CV-0646-M,2007 WL 3071015 at *3 (N.D. Tex. Oct.

19,2001), COA denied, No. 07-l I156 (5th Cir. Aug. 19, 2008)'

Although petitioner is not baned from challenging his attomey's closing argument, this claim

lacks merit. In an attempt to convince the jury to convict petitioner of the lesser included offense

of murder, counsel argued:

I'm going to ask you, ladies and gentlemen, to look closely at what has

come forward in this case to you from this witness stand (indicating).

And I'm going to ask you to find this defendant not guilty of capital

I The statute provides, in relevant part, that:

Ifa subsequent application for writ ofhabeas corpus is filed after final disposition

of an initial application challenging the same conviction, a court may not consider

the merits of or grant relief based on the subsequent application unless the

application contains sufficient specific facts establishing that:

(l) the current claims and issues have not been and could not have

been presented previously in an original application or in a previously considered

application filed under this article because the facfual or legal basis for the claim

was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the

United States Constitution no rational juror could have found the applicant guilty

beyond a reasonable doubt.

TEX. CoDE Cnwt. Pnoc. ANN. art. I 1.07, $ a(a).

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 12 of 14 PageID 197
murder because there is no evidence of capital murder. Zero. Nonb.

None.

Murder? That's up to you because obviously he was there. Obviously

he knows something. Obviously you can figure out from the

evidence, if you want to, what he did.

(SF-VI at 25). Under the deferential standard by which counsel's actions at trial are judged,

petitioner has not shown that the decision by his attorney to concede guilt to a lesser included offense

fell outside the wide range of reasonable professional assistance. To the contrary, in view of the

overwhelming evidence of petitioner's guilt, counsel's argument was sound trial strategy. See

Gordon v. Coclvell, 55 Fed.Appx.7l7 ,2002WL 31933286 at * I (5th Cir. Dec. 27,2002) (counsel

not ineffective for arguing that defendant should be found guilty only of lesser included offense of

attempted aggravated robbery instead of charged offense of aggravated robbery). This ground for

relief should be overruled.

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party who objects to any part of this report and recommendation must file

specificwrittenobjectionswithinl4daysafterbeingservedwithacopy. See28U.S.C.$636(bXl);

Fep. R. Crv, P. 72(b). In order to be specific, an objection must identiff the specific finding or

recommendation to which objection is made, state the basis for the objection, and speciS the place

in the magistrate judge's report and recommendation where the disputed determination is found. An

objection that merely incorporates by reference or refers to the briefing before the magistrate judge

is not specific. Failure to file specific written objections will barthe aggrieved party from appealing

the factual findings and legal conclusions ofthe magistrate judge that are accepted or adopted by the

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 13 of 14 PageID 198
district court, except upon grounds of plain enor. See Douglass v. United Services Automobile Ass'n,

79 F.3d 1415,1417 (5th Cir. 1996).

DATED: December 3, 2009.

STATES N,IAGiSTRATE JTjDGE

 

 Case 3:05-cv-02438-K Document 34 Filed 12/03/09 Page 14 of 14 PageID 199