Opinion
3:20-cv-1631-B-BN
11-01-2021
EVENDER GENE JACKSON, JR., TDCJ No. 2021056, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE.
“A jury convicted Evender Gene Jackson of aggravated robbery with a deadly weapon”; “[a]fter he pled true to the State's enhancement allegation, the trial court sentenced Jackson to fifty years' imprisonment”; his conviction and sentence were affirmed; the Texas Court of Criminal Appeals (the CCA) refused Jackson's petition for discretionary review; and the United States Supreme Court denied his petition for writ of certiorari. Jackson v. State, 487 S.W.3d 648, 652 (Tex. App. - Texarkana 2016, pet. ref'd), cert. denied, 139 S.Ct. 2643 (2019); Dkt. No. 14-2.
After the CCA denied Jackson's state habeas application without written order, see Ex parte Jackson, WR-86, 487-02 (Tex. Crim. App. May 6, 2020); Dkt. No. 14-3, he filed this pro se 28 U.S.C. § 2254 application for a writ of habeas corpus in the Eastern District of Texas, see Dkt. No. 1. Once it was transferred to this district, in which the state court that convicted Jackson lies, see Dkt. No. 3, United States District Judge Jane J. Boyle referred the Section 2254 application to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. The State responded. See Dkt. No. 14. Jackson replied. See Dkt. No. 16. And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny federal habeas relief.
Legal Standards
“Federal habeas features an intricate procedural blend of statutory and caselaw authority.” Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). In the district court, this process begins - and most often ends - with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which “state prisoners face strict procedural requirements and a high standard of review.” Adekeye, 938 F.3d at 682 (citation omitted). This is because, “[u]nder AEDPA, state courts play the leading role in assessing challenges to state sentences based on federal law.” Shinn v. Kayer, 141 S.Ct. 517, 526 (2020) (per curiam).
So, where a state court has already rejected a claim on the merits, a federal court may grant habeas relief on that claim only if the state court adjudication
(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 the State court proceeding.28 U.S.C. § 2254(d).
The statute therefore “restricts the power of federal courts to grant writs of habeas corpus based on claims that were ‘adjudicated on the merits' by a state court, ” Shinn, 141 S.Ct. at 520 (citation omitted). And, “[w]hen a state court has applied clearly established federal law to reasonably determined facts in the process of adjudicating a claim on the merits, a federal habeas court may not disturb the state court's decision unless its error lies ‘beyond any possibility for fairminded disagreement.'” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Further, “[u]nder § 2254(d), ” the reasonableness of the state court decision -not whether it is correct - “is ‘“the only question that matters.”'” Id. at 526 (quoting Richter, 562 U.S. at 102); accord Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.”); Sanchez v. Davis, 936 F.3d 300, 305 (5th Cir. 2019) (“[T]his is habeas, not a direct appeal, so our focus is narrowed. We ask not whether the state court denial of relief was incorrect, but whether it was unreasonable -whether its decision was ‘so lacking in justification' as to remove ‘any possibility for fairminded disagreement.'” (citation omitted)); Hughes v. Vannoy, 7 F.4th 380, 387 (5th Cir. 2021) (“‘A merely incorrect state court decision is not sufficient to constitute an unreasonable application of federal law ....' Instead, the state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” (footnotes omitted)).
A state court adjudication on direct appeal is due the same deference under Section 2254(d) as an adjudication in a state post-conviction proceeding. See, e.g., Dowthitt v. Johnson, 230 F.3d 733, 756-57 (5th Cir. 2000) (a finding made by the CCA on direct appeal was an “issue ... adjudicated on the merits in state proceedings, ” to be “examine[d] ... with the deference demanded by AEDPA” under “28 U.S.C. § 2254(d)”). And nothing “in AEDPA or [the Supreme] Court's precedents permit[s] reduced deference to merits decisions of lower state courts.” Shinn, 141 S.Ct. at 524 n.2 (citing 28 U.S.C. § 2254).
Starting with Section 2254(d)(1), 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 facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam) (“We have emphasized, time and time again, that the [AEDPA] prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is ‘clearly established.'” (citation omitted)).
“A state court unreasonably applies clearly established Supreme Court precedent when it improperly identifies the governing legal principle, unreasonably extends (or refuses to extend) a legal principle to a new context, or when it gets the principle right but ‘applies it unreasonably to the facts of a particular prisoner's case.'” Will v. Lumpkin, 978 F.3d 933, 940 (5th Cir. 2020) (quoting Williams v. Taylor, 529 U.S. 362, 407-08 (2000); citation omitted). “But the Supreme Court has only clearly established precedent if it has ‘broken sufficient legal ground to establish an asked-for constitutional principle.'” Id. (quoting Taylor, 569 U.S. at 380-82; citations omitted).
As noted above, “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law....A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (citations and internal quotation marks omitted). “Under § 2254(d), a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102 (internal quotation marks omitted); see also Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017) (recognizing that Section 2254(d) tasks courts “with considering not only the arguments and theories the state habeas court actually relied upon to reach its ultimate decision but also all the arguments and theories it could have relied upon” (citation omitted)).
The Supreme Court has further explained that “[e]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Richter, 562 U.S. at 101 (internal quotation marks omitted). And “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Supreme Court has explained that, “[i]f this standard is difficult to meet, that is because it was meant to be, ” where, “[a]s amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings, ” but “[i]t preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents, ” and “[i]t goes no further.” Id. Thus, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; accord Burt v. Titlow, 571 U.S. 12, 20 (2013) (“If this standard is difficult to meet - and it is - that is because it was meant to be. We will not lightly conclude that a State's criminal justice system has experienced the extreme malfunction for which federal habeas relief is the remedy.” (internal quotation marks, brackets, and citations omitted)).
As to Section 2254(d)(2)'s requirement that a petitioner show that the state court adjudication “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, ” the Supreme Court has explained that “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance” and that federal habeas relief is precluded even where the state court's factual determination is debatable. Wood v. Allen, 558 U.S. 290, 301, 303 (2010). Under this standard, “it is not enough to show that a state court's decision was incorrect or erroneous. Rather, a petitioner must show that the decision was objectively unreasonable, a substantially higher threshold requiring the petitioner to show that a reasonable factfinder must conclude that the state court's determination of the facts was unreasonable.” Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (brackets and internal quotation marks omitted).
The Court must presume that a state court's factual determinations are correct and can find those factual findings unreasonable only where the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
This presumption applies not only to explicit findings of fact but also “to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); see also Ford v. Davis, 910 F.3d 232, 235 (5th Cir. 2018) (Section 2254(e)(1) “‘deference extends not only to express findings of fact, but to the implicit findings of the state court.' As long as there is ‘some indication of the legal basis for the state court's denial of relief,' the district court may infer the state court's factual findings even if they were not expressly made.” (footnotes omitted)).
And, even if the state court errs in its factual findings, mere error is not enough - the state court's decision must be “based on an unreasonable factual determination.... In other words, even if the [state court] had gotten [the disputed] factual determination right, its conclusion wouldn't have changed.” Will, 978 F.3d at 942.
Further, “determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning.” Richter, 562 U.S. at 98; see Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003) (“a federal habeas court is authorized by Section 2254(d) to review only a state court's ‘decision,' and not the written opinion explaining that decision” (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam))); Evans, 875 F.3d at 216 n.4 (even where “[t]he state habeas court's analysis [is] far from thorough, ” a federal court “may not review [that] decision de novo simply because [it finds the state court's] written opinion ‘unsatisfactory'” (quoting Neal, 286 F.3d at 246)); see also Hughes, 7 F.4th at 387 (observing that a federal habeas court also “must ‘carefully consider all the reasons and evidence supporting the state court's decision”” and that a decision that “does not explain its reasoning does not affect [federal habeas] review, ” as federal courts “are required to ‘determine what arguments or theories could have supported the state court's determination' and examine ‘each ground supporting the state court decision'” (footnotes omitted)).
Section 2254 thus creates a “highly deferential standard for evaluating state court rulings, which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). And, while “AEDPA sets a high bar, ” it is “not an insurmountable one.” Hughes, 7 F.4th at 392. To surmount it, a petitioner must show that “there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. That is, in sum, a petitioner must “show, based on the state-court record alone, that any argument or theory the state habeas court could have relied on to deny [him] relief would have either been contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court.” Evans, 875 F.3d at 217; see also Hughes, 7 F.4th at 392 (Federal courts “are obligated to correct” those “rare ‘extreme malfunctions in the state criminal justice system.'” (quoting Dunn v. Reeves, 141 S.Ct. 2405, 2411 (2021) (per curiam))).
Analysis
Against this framework, Jackson first argues that his conviction is not supported by sufficient evidence - that “[t]he State failed to prove every element” of aggravated robbery. Dkt. No. 1 at 6.
On federal habeas corpus review, the evidentiary sufficiency of a state court conviction is governed by the legal-sufficiency analysis set forth in Jackson v. Virginia, 443 U.S. 307 (1979), which reflects the federal constitutional due process standard. See Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002). This standard requires only that a reviewing court determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. In conducting that review, a federal habeas corpus court may not substitute its view of the evidence for that of the fact finder but must consider all the evidence in the light most favorable to the verdict. See Weeks v. Scott, 55 F.3d 1059, 1061 (5th Cir. 1995).Pena v. Dir., Tex. Dep't of Crim. Justice, No. 2:18-cv-172-M-BR, 2021 WL 4142683, at *9 (N.D. Tex. July 2, 2021) (citation modified), rec. accepted, 2021 WL 4133498 (N.D. Tex. Sept. 10, 2021).
As presented in his habeas application, Jackson's legal sufficiency claim is conclusory in nature, which is reason alone to deny it, as a “conclusory statement alone is insufficient for petitioner to prove the threshold standard to overcome the AEDPA bar and obtain federal habeas relief.” Tuckness v. Davis, No. 2:16-cv-188-D, 2019 WL 1930038, at *4 (N.D. Tex. Mar. 22, 2019) (footnote omitted), rec. adopted, 2019 WL 1923851 (N.D. Tex. Apr. 30, 2019); cf. Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001) (“It is clear that Sayre's conclusory speculation about the effect of the unidentified favorable witness' testimony falls far short of the prima facie showing of prejudice necessary for the evidentiary hearing Sayre requests.” (citing United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983))).
But Jackson also raised a legal sufficiency claim on direct appeal:
In his first point of error on appeal, Jackson argues that the evidence is legally insufficient to support the jury's finding that he committed aggravated robbery. Yet, Jackson does not deny either that he beat Sweeden, that he stole from him, or that Dean used a shotgun during the offense. Instead, he asserts (1) that the evidence was insufficient to “establish that there was a plan or agreement to commit robbery with Dean” and (2) that “there is no evidence on which the jury could [have] inferred that [Jackson] intended to promote or assist in the use of a deadly weapon.”Jackson, 487 S.W.3d at 653.
In a reasoned decision, the Texarkana Court of Appeals rejected both contentions. See id. at 653-57. The CCA and the United States Supreme Court refused to consider the Court of Appeals's denial of the claim. And, now examining the Court of Appeals's reasoned denial of the sufficiency-of-the-evidence claim under AEDPA deference, Jackson has not shown that the denial of this claim was unreasonable considering Jackson v. Virginia's legal sufficiency standard - that is, that the denial of this claim “was ‘so lacking in justification' as to remove ‘any possibility for fairminded disagreement, '” Sanchez, 936 F.3d at 305.
The Court should therefore deny Jackson's first habeas claim.
Jackson next argues that his trial counsel provided constitutionally ineffective assistance by failing to add a co-defendant to the jury charge/not moving for a directed verdict and by arguing to the jury during closing that Jackson was guilty of the lesser offense of robbery. See Dkt. No. 1 at 6-7.
The Court reviews the merits of properly exhausted claims of ineffective assistance of counsel (IAC), whether made against trial or appellate counsel, under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984), under which a petitioner “‘must show that counsel's performance'” - “‘strongly presume[d to be] good enough'” - “‘was [1] objectively unreasonable and [2] prejudiced him.'” Coleman v. Vannoy, 963 F.3d 429, 432 (5th Cir. 2020) (quoting Howard v. Davis, 959 F.3d 168, 171 (5th Cir. 2020)).
To count as objectively unreasonable, counsel's error must be “so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687; see also Buck v. Davis, 137 S.Ct. 759, 775 (2017) (reaffirming that “[i]t is only when the lawyer's errors were ‘so serious that counsel was not functioning as the “counsel” guaranteed ... by the Sixth Amendment' that Strickland's first prong is satisfied” (citation omitted)). “And to establish prejudice, a defendant must show ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Andrus v. Texas, 140 S.Ct. 1875, 1881 (2020) (per curiam) (quoting Strickland, 466 U.S. at 694).
“A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003); see also Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012) (“[B]ecause of the risk that hindsight bias will cloud a court's review of counsel's trial strategy, ‘a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” (quoting Strickland, 466 U.S. at 689)).
And, “[j]ust as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities.” Richter, 562 U.S. at 110. “The Supreme Court has admonished courts reviewing a state court's denial of habeas relief under AEDPA that they are required not simply to give [the] attorney's the benefit of the doubt, ... but to affirmatively entertain the range of possible reasons [petitioner's] counsel may have had for proceeding as they did.” Clark v. Thaler, 673 F.3d 410, 421 (5th Cir. 2012) (internal quotation marks omitted).
Therefore, on habeas review under AEDPA, “if there is any ‘reasonable argument that counsel satisfied Strickland's deferential standard,' the state court's denial must be upheld.” Rhoades v. Davis, 852 F.3d 422, 432 (5th Cir. 2017) (quoting Richter, 562 U.S. at 105); see also Sanchez, 936 F.3d at 305 (“As the State rightly puts it, we defer ‘both to trial counsel's reasoned performance and then again to the state habeas court's assessment of that performance.'” (quoting Rhoades, 852 F.3d at 434)).
To demonstrate prejudice, a habeas 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.” Strickland, 466 U.S. at 694. Thus, “the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” Richter, 562 U.S. at 111. “Instead, Strickland asks whether it is ‘reasonably likely' the result would have been different, ” which “does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.” Id. at 11112 (quoting Strickland, 466 U.S. at 693, 696, 697). “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.
Specific to appellate counsel, the Supreme Court “has indicated that although ‘it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, ... it is difficult to demonstrate that counsel was incompetent.'” Diaz v. Quarterman, 228 Fed.Appx. 417, 427 (5th Cir. 2007) (per curiam) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). And, “[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Smith, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986); internal quotation marks omitted); see also Varga v. Quarterman, 321 Fed.Appx. 390, 396 (5th Cir. 2009) (per curiam) (“In Gray, the Seventh Circuit further held that if appellate counsel ‘failed to raise a significant and obvious issue, the failure could be viewed as deficient performance' and that if the issue that was not raised ‘may have resulted in a reversal of the conviction, or an order for a new trial, the failure was prejudicial.'” (quoting Gray, 800 F.2d at 646)).
IAC claims are considered mixed questions of law and fact and are therefore analyzed under the “unreasonable application” standard of 28 U.S.C. § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010); Adekeye, 938 F.3d at 682.
Where the state court has adjudicated claims of ineffective assistance on the merits, this Court must review a habeas petitioner's claims under the “doubly deferential” standards of both Strickland and Section 2254(d). Cullen v. Pinholster, 563 U.S. 170, 190, 202 (2011); compare Rhoades, 852 F.3d at 434 (“Our federal habeas review of a state court's denial of an ineffective-assistance-of-counsel claim is ‘doubly deferential' because we take a highly deferential look at counsel's performance through the deferential lens of § 2254(d).” (citation omitted)), with Johnson v. Sec'y, DOC, 643 F.3d 907, 910-11 (11th Cir. 2011) (“Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.”); see also Canfield v. Lumpkin, 998 F.3d 242, 246 (5th Cir. 2021) (“Strickland ... imposes a high bar on those alleging ineffective assistance of counsel. But 28 U.S.C. § 2254(d) ... raises the bar even higher.”); cf. Shinn, 141 S.Ct. at 525 (“recogniz[ing] the special importance of the AEDPA framework in cases involving Strickland claims, ” since “[i]neffective-assistance claims can function ‘as a way to escape rules of waiver and forfeiture,' and they can drag federal courts into resolving questions of state law” (quoting Richter, 562 U.S. at 105)).
In such cases, the “pivotal question” for this Court is not “whether defense counsel's performance fell below Strickland's standard”; it is “whether the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 101; see also id. at 105 (“Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” (internal quotation marks and citations omitted)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation omitted).
In sum, AEDPA does not permit a de novo review of state counsel's conduct in these claims under Strickland. See Richter, 562 U.S. at 101-02. Instead, on federal habeas review of a Strickland claim fully adjudicated in state court, the state court's determination is granted “a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id. at 101; see Canfield, 998 F.3d at 246-47 (Federal courts “review state-court adjudications for errors ‘so obviously wrong' as to lie ‘beyond any possibility for fairminded disagreement, '” presuming the state court “findings of fact to be correct.” (footnotes omitted)).
See also Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (per curiam) (explaining that federal habeas review of ineffective-assistance-of-counsel claims is “doubly deferential” “because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'”; therefore, “federal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt'” (quoting Burt, 571 U.S. at 22, 15)); Adekeye, 938 F.3d at 683-84 (“The Supreme Court standard on prejudice is sharply defined: ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.' [A petitioner] must show it was ‘reasonably likely' the jury would have reached a different result, not merely that it could have reached a different result. The Court reaffirmed this point in Richter: ‘The likelihood of a different result must be substantial, not just conceivable.' Now layer on top of that the habeas lens of reasonableness. [Where] the state court ha already adjudicated [a petitioner's] ineffective-assistance claim on the merits, he must show that the court's no-prejudice decision is ‘not only incorrect but “objectively unreasonable.”' Put differently, [he] must show that every reasonable jurist would conclude that it is reasonable likely that [a petitioner] would have fared better at trial had his counsel conducted [himself differently]. ‘It bears repeating,' the Supreme Court emphasized in Richter, ‘that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.'” (footnotes omitted)).
Respondent first argues that, while Jackson made various IAC claims in the state habeas court, his IAC claim related to the propriety of his counsel's closing argument was not presented to the CCA and is therefore unexhausted and now procedurally barred. See Dkt. No. 14 at 6-9; Loynachan v. Davis, 766 Fed.Appx. 156, 159 (5th Cir. 2019) (“A federal court may not grant habeas relief unless the petitioner ‘has exhausted the remedies available in the courts of the State.'” (quoting 28 U.S.C. § 2254(b)(1)(A))); Campbell v. Dretke, 117 Fed.Appx. 946, 957 (5th Cir. 2004) (“‘The exhaustion requirement is satisfied when the substance of the habeas claim has been fairly presented to the highest state court' so that a state court has had a ‘fair opportunity to apply controlling legal principles to the facts bearing on the petitioner's constitutional claim.'” (quoting Soffar v. Dretke, 368 F.3d 441, 465 (5th Cir. 2004))).
Even if this IAC claim is unexhausted, it is also meritless. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
“Decisions to concede guilt or argue for a lesser-included offense are matters of strategy.” Castillo v. Stephens, 640 Fed.Appx. 283, 293 (5th Cir. 2016) (per curiam) (citing Haynes v. Cain, 298 F.3d 375, 382-83 (5th Cir. 2002) (en banc)). And “[d]efense counsel's ‘“strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengable.”'” Meija v. Davis, 906 F.3d 307, 316 (5th Cir. 2018) (quoting Rhoades, 852 F.3d at 434 (quoting, in turn, Strickland, 466 U.S. at 690)).
Particularly considering the standard applicable now - under which this Court must “defer ‘both to trial counsel's reasoned performance and then again to the state habeas court's assessment of that performance, '” Sanchez, 936 F.3d at 305 - Jackson has not demonstrated (and the record does not reflect) that there was absolutely no strategy behind counsel's concession. In fact, there is support in the record for the decision to admit facts that counsel could not reasonably dispute to focus the jury on issues that could be reasonably disputed - for example, that Jackson did not intentionally or knowingly exhibit a deadly weapon. See Jackson, 487 S.W.3d at 655 (“Sweeden recalled that both Jackson and Dean approached him on the street at the same time and began intimidating him. Sweeden attempted to halt the altercation by informing Jackson and Dean that he had a weapon. Dean testified the he got his shotgun when he heard that Sweeden had a weapon. But, Sweeden testified that Jackson was striking him from behind when he noticed that Dean, who was in front of him, was holding a shotgun and pointing it towards him.”).
Jackson has therefore not shown that the CCA's denial of this IAC ground was unreasonable. Cf. Hughes, 7 F.4th at 389 (“Collier had no explanation or strategic thinking behind his decision not to attempt to interview Allen himself or send an investigator to do so. We thus cannot say that a fairminded jurist would find Collier's strategic decision not to request a continuance or to even try to interview Allen to be a ‘conscious and informed decision.'” (footnote omitted)).
Turning to Jackson's IAC claim framed as that counsel failed “to add codefendant to the jury charge”/to “ask for an instructed verdict, ” Dkt. No. 1 at 6, Respondent construes this claim - correctly based on the undersigned's review - as arguing that counsel should have requested a jury instruction on the Texas accomplice witness rule, an issue Jackson raised on direct appeal. See Jackson, 487 S.W.3d at 657-58.
Texas's accomplice-witness statute, Texas Code of Criminal Procedure Article 38.14, “disallows any conviction based upon uncorroborated testimony of an accomplice.” Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim. App. 2013) (citation omitted). But “[t]he accomplice witness rule is satisfied if there is some nonaccomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment.” Hernandez v. State, 939 S.W.3d 173, 176 (Tex. Crim. App. 1997) (citations omitted).
Here, there was such evidence. As the Texarkana Court of Appeals concluded, “[t]his was not a case involving mistaken identity or mere innocent presence. Here, Sweeden's and Cantera's testimony linked Jackson to the crime and directly implicated him as a perpetrator of the aggravated robbery. Thus, Dean's testimony was sufficiently corroborated.” Jackson, 487 S.W.3d at 658 (footnote omitted); see also id. at 653 (“Officer Marcus Cantera soon spotted Jackson riding his bicycle while wearing the vest described by Sweeden. Cantera stopped Jackson and found Sweeden's identification in the stolen wallet. He arrested Jackson and transported him to the Commerce Police Department.” (footnote omitted)).
So Jackson has not shown that it would have been meritorious for his counsel to have requested a jury instruction/moved for a directed verdict on Texas's accomplice witness rule and therefore shown that the CCA's denial of this claim was unreasonable.
The Court should therefore deny each IAC claim made by Jackson.
Jackson finally argues that the State violated his constitutional right to equal protection by describing the victim as “white” more than once. Dkt. No. 1 at 7. Construing this conclusory claim as one asserting prosecutorial misconduct, a federal court's review of such a claim under Section 2254 is circumscribed. And,
[t]o prevail on a claim of prosecutorial misconduct, a habeas corpus petitioner must show that the prosecutor's actions “‘so infected the [trial] with unfairness as to make the resulting [conviction] a denial of due process.'” Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000)
(quoting Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir. 1996)). “Prosecutorial misconduct is not a ground for relief unless it casts serious doubt upon the correctness of the jury's verdict.” Styron v. Johnson, 262 F.3d 438, 449 (5th Cir. 2001). In other words, the alleged conduct must render the trial fundamentally unfair within the meaning of the Due Process Clause of the Fourteenth Amendment. See Darden v. Wainwright, 477 U.S. 168, 180-81 (1986).Batiste v. Quarterman, 622 F.Supp.2d 423, 435 (S.D. Tex. 2008); see also Darden, 477 U.S. at 181 (“[T]he appropriate standard of review for such a claim on writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power.” (quotation marks omitted)).
Jackson's conclusory support for this claim does not show a due process violation. Neither does the record demonstrate a reason to doubt the correctness of the jury's verdict. Jackson has therefore not shown that the CCA's denial of this claim was unreasonable.
The Court should therefore deny Jackson's due process claim.
Recommendation
The Court should deny the application for a writ of habeas corpus.
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. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).