FINDINGS, CONCLUSIONS, AND RECOMMENDATION
IRMA CARRILLO RAMIREZ, Magistrate Judge.
Pursuant to Special Order 3-251, this case has been referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the petition for writ of habeas corpus under 28 U.S.C. § 2254 should be
Michale Herring (Petitioner) challenges his conviction for murder in Cause No. F12-60987. The respondent is Lorie Davis, Director of TDCJ-CID (Respondent).
Factual and Procedural History
On December 14, 2012, the State indicted Petitioner for murder. (Doc. 12-4 at 86
Petitioner's state habeas application, signed on August 21, 2014, was received by the state court on August 29, 2014. (Id. at 5, 21.) On May 13, 2015, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing. (Doc. 12-1); see Ex parte Herring, No. WR-82,957-01 (Tex. Crim. App. May 13, 2015).
On May 27, 2015, Petitioner mailed his federal habeas petition. (Doc. 1 at 14.) He raised the following claims, which he had raised at the state level:
Respondent filed a response on October 27, 2015. (Doc. 15.) Petitioner filed a reply on November 23, 2015. (Doc. 16.)
II. APPLICABLE LAW
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because Petitioner filed his petition after its effective date, the Act applies.
Title I of AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by AEDPA, a state prisoner may not obtain relief
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law within the meaning of § 2254(d)(1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). As for the "unreasonable application" standard, a writ must issue "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." Id. at 413; accord Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; accord Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner contends counsel was ineffective for failing to file a motion to compel disclosure of the video surveillance tape; investigate eyewitnesses; investigate any defense; challenge the withholding of the video surveillance tape; challenge the failure to preserve the video surveillance tape; challenge the statements of a witness; compel the disclosure of eyewitnesses' statements; and investigate discrepancies between witnesses' statements and police reports based on those statements.
The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. art. VI. To successfully state a claim of ineffective assistance of counsel, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. See 466 U.S. at 696. Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors. Id. at 695-96.
To determine whether counsel's performance is constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691. To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Petitioners must "affirmatively prove prejudice." Id. at 693. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992).
The Strickland test applies in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). A guilty plea is "open to attack on the ground that counsel did not provide the defendant with `reasonably competent advice.'" Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-71 (1970)).
Tollett v. Henderson, 411 U.S. 258, 267 (1973). "[I]n a guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pled guilty but for the error." See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).
Video Surveillance Tape
Petitioner contends that counsel failed to file a motion to compel disclosure of the video surveillance tape, and challenge its withholding and the failure to preserve it.
During the state habeas corpus proceedings, the prosecutor submitted an affidavit stating:
(Doc. 12-3 at 13.) Defense counsel's affidavit stated:
(Id. at 19-20.)
The state habeas court found that the affidavits were credible, no video surveillance recording was recovered, no evidence was suppressed, and Petitioner did not show counsel was ineffective. (Id. at 25-28.) He has not shown that the state court's rejection of these claims was unreasonable.
Investigation of Witnesses
Petitioner contends counsel failed to investigate eyewitnesses; investigate any defense; challenge the statements of witness Charles Savage, Sr.; compel the disclosure of eyewitnesses' statements; and investigate discrepancies between the statements of witnesses Jeffrey Collins and Stephanie Herring and the police reports that were based on those statements.
The prosecutor's affidavit stated, "All the videotapes that were collected by the police were turned over to the defense in advance of trial. This includes the videotaped statements of Douglas Thibodeaux, Deshauna Starling, and Elizabeth Harris. . . ." (Id. at 14.)
Defense counsel's affidavit stated:
(Id. at 20-21, 23.)
The state habeas court found that counsel performed an independent investigation of the case, interviewed witnesses, and had the assistance of two investigators. (Id. at 27.) The court found that Petitioner did not show that he received ineffective assistance of counsel. (Id.) He has not shown that the state court's rejection of these claims was unreasonable.
BRADY CLAIMS — VIDEO SURVEILLANCE TAPE
Petitioner contends the State withheld a video surveillance tape of the incident, which was exculpatory, and concealed and failed to preserve the tape.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that a prosecutor must disclose evidence to a criminal defendant if that evidence is favorable to the defendant and material to his guilt or punishment. "Brady claims involve `the discovery, after trial of information which had been known to the prosecution but unknown to the defense.'" Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Evidence is material within the meaning of Brady only when there is a reasonable probability of a different result at trial had the evidence been disclosed. Wood v. Bartholomew, 516 U.S. 1, 5 (1995).
As discussed, the state court found that no video surveillance recording was recovered and that no evidence was suppressed. Petitioner has not shown that the state court's rejection of this claim was unreasonable.
V. EVIDENTIARY HEARING
Upon review of the pleadings and the proceedings held in state court as reflected in the state court records, an evidentiary hearing appears unnecessary.
The petition for habeas corpus relief under 28 U.S.C. § 2254 should be
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions 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 bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).