Matthews et al v. Davis-Director TDCJ-CID, No. 3:2019cv00192 - Document 29 (S.D. Tex. 2020)

Court Description: MEMORANDUM OPINION AND ORDER granting 15 MOTION for Summary Judgment with Brief in Support. The federal habeas corpus petition (Dkt. 1) is denied(Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 4)

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Matthews et al v. Davis-Director TDCJ-CID Doc. 29 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 1 of 54 United States District Court Southern District of Texas ENTERED October 26, 2020 IN TH E U N ITED STATES D ISTRICT COU RTDavid J. Bradley, Clerk FOR TH E SOU TH ERN D ISTRICT OF TEXAS GALVESTON D IVISION No. 3:19-CV-0 192 R YAN ANTONIO M ATTHEWS, P ETITIONER, v. BOBBY LUMPKIN , R ESPONDENT. MEMORAN D U M OPIN ION AN D ORD ER J EFFREY VINCENT BROWN , U NITED STATES DISTRICT J UDGE . The petitioner, Ryan Antonio Matthews, seeks a writ of habeas corpus under 28 U.S.C. § 2254 to challenge the conviction and sentence he received in state court in Brazoria County (Dkts. 1, 2). The respondent, Bobby Lumpkin, 1 has answered with a motion for sum m ary judgm ent (Dkt. 15) arguing that Matthews is not entitled to relief. Matthews has filed a reply (Dkt. 28). After considering all the pleadings, the state-court records, and the applicable law, the court will grant the respondent’s m otion, deny the petition, and dism iss this action for the reasons explained below. 1 The previously nam ed respondent in this action was Lorie Davis. On August 11, 20 20 , Bobby Lum pkin succeeded Lorie Davis as Director of the Correctional Institutions Division. Under Rule 25(d)(1) of the Federal Rules of Civil Procedure, Bobby Lum pkin “is autom atically substituted as a party.” Dockets.Justia.com Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 2 of 54 BACKGROU N D I. Th e Crim e The victim , a sixteen-year-old Pearland high-school student, took a hom e pregnancy test on February 26th, 20 14, that rendered positive results. A doctor’s visit confirm ed that she was twelve weeks pregnant. The victim was excited a week later to find that she carried twins. She decided to transfer to an alternative school in Pearland. On March 21, the last school day before the victim ’s transfer, fam ily m em bers cam e home to find the house in disarray. There was no sign of forced entry. The victim ’s father eventually found her dead, lying in a pool of blood. She had died from a combination of m anual strangulation and stab wounds to her neck and head. The police investigation quickly turned to the victim ’s sexual partner, sixteen-year-old Ryan Antonio Matthews. Matthews had been in a casual sexual relationship with the victim for several m onths but still m aintained relationships with other girls. Matthews did not share the victim ’s enthusiasm about the pregnancy; he saw it as an im pedim ent to his dream s of college education and sports stardom. Matthews had repeatedly and persistently urged the victim to abort the pregnancy, either through a m edical provider or through self-harm . Matthews was the last person known to have been with the victim . A friend had dropped Matthews off at the victim ’s hom e only a few hours before her family 2 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 3 of 54 found her dead. Testing confirm ed that Matthews had sexual relations with the victim soon before her death. When questioned by police, Matthews repeatedly lied about various material facts. The police arrested Matthews for the m urder of the victim and their two unborn children. II. Th e Ju ve n ile -Co u rt Pro ce e d in gs In Texas, a juvenile court has original jurisdiction over any child under seventeen years of age. See Tex. Fam . Code §§ 51.0 2(2), 51.0 4. Matthews was only a few weeks shy of his seventeenth birthday when the offense occurred. 2 The State of Texas initially filed charges in the County Court at Law No. 2 and Probate Court of Brazoria County, sitting as a juvenile court. In the m atter of Ry an Antonio Matthew s, No. J V 19869H. On May 23, 20 14, the Brazoria County prosecuting attorney filed a petition for a discretionary transfer to crim inal court alleging that a child, Matthews, had com mitted two counts of capital m urder. Under Texas law, “[t]he juvenile court m ay waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for crim inal proceedings” if certain conditions are m et. Tex. Fam . Code § 54.0 2. As part of the transfer proceedings, Dr. Michael Fuller, a forensic psychiatrist with the University of Texas Medical Branch, exam ined Matthews on J une 5, 20 14. Dr. Fuller was one of four witnesses who testified in a J uly 8, 20 14, juvenile-court hearing on the transfer petition. Dr. Fuller explained that Matthews 2 Matthews was born on April 5, 1997. 3 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 4 of 54 did not have a history of m ajor psychiatric illness, was not intellectually disabled, and exhibited no impairm ent in his m em ory, judgm ent, reasoning, or insight. Dr. Fuller testified that Matthews understood the charges against him and possessed a rational ability to engage in a reasoned choice of legal strategies and options— including the ability to enter a plea and testify at trial. The juvenile court also received evidence of Matthews’s prior offenses, (assault and credit-card abuse), his poor school disciplinary history, and his participation in an altercation while in custody. A police officer testified about Matthews’s dishonesty during the investigation, his threats to other students who asked about the pregnancy, and his flight risk. After considering the parties’ testim ony, evidence, and argument, the juvenile court waived its jurisdiction and transferred the case to the state district court. The juvenile court entered an order outlining the reasons for certifying Matthews for prosecution as an adult: (1) he exhibited sufficient sophistication and m aturity to stand trial in adult court; (2) he possessed sufficient sophistication and m aturity to aid an attorney in his defense; and (3) the nature of the offense and Matthews’s criminal history weighed in factor of protecting the public through adult certification, especially given the paucity of evidence showing the hope for rehabilitation through juvenile procedures. The juvenile court’s order also m ade case-specific findings of fact based on the nature of the offense, Matthews’s threats to others, and his age which had nearly rem oved him from juvenile court’s original 4 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 5 of 54 jurisdiction. III. Trial On J uly 24, 20 14, Matthews was indicted for two counts of capital m urder in Cause 73841, filed in the 239th District Court for Brazoria County. Trial began on April 14, 20 15. As set forth by the state intermediate appellate court, the trial evidence established the following facts: Sixteen-year-old Amy[ 3 ] was pregnant with twin boys when she was strangled and stabbed to death at her hom e in Pearland, Texas. [Matthews], about three weeks shy of his seventeenth birthday at the tim e of Am y’s m urder,[ 4 ] was the father of Am y’s unborn children. Both attended the sam e Pearland high school and had m et in class. They were not dating but were involved in a sexual relationship. When Am y discovered she was pregnant, [Matthews] was very upset. He encouraged her to take actions to induce a miscarriage, such as punching herself in the stom ach several tim es a day. He also encouraged Amy to have an abortion. [Matthews] was very concerned about the im pact having a child would have on his life; he even told Am y that he had considered killing him self because of the pregnancy. When Amy confessed to her parents she was pregnant, they quickly took her to a doctor. An ultrasound revealed that Am y was pregnant with twins; Am y thought this was good news. [Matthews], on the other hand, was extrem ely upset to discover that Am y was having twins. When Amy told [Matthews] that abortion was no longer an option, [Matthews] was angry. On the day of Am y’s m urder, [Matthews], Am y, and a friend of theirs skipped an afternoon class, and the friend drove them to Amy’s hom e so that [Matthews] and Am y could have sex. The friend had done this on several occasions in the past. The friend dropped them off, and [Matthews] and Am y entered through the back door of Amy’s hom e, as was their norm al practice. The two went upstairs and had sex, although [Matthews] claim ed in an interview with detectives he did not “finish” because he was concerned he could hurt the babies. 3 We replace the m inor com plainant’s true nam e with a pseudonym . 4 Am y was killed on March 21, 20 14; [Matthews] turned seventeen on April 5, 20 14. 5 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 6 of 54 [Matthews] also claim ed in that interview that he and Am y talked about their future and both becam e emotional. He stated he left the house alone through the back door, while Am y was upstairs crying. [Matthews’s] friend picked him up in front of the house about an hour later. His friend noted that [Matthews] appeared “norm al,” but did not com e out of the front door of the hom e accompanied by Am y as had happened in the past. [Matthews] was also wearing different clothing than he had been wearing earlier in the day. About forty-five m inutes after [Matthews] left Am y’s hom e, Amy’s younger brother arrived. Am y’s brother called her nam e and didn’t hear a response. He went upstairs and saw several item s broken and lying on the floor in his parents’ room . Thinking the house had been burglarized, he ran to a neighbor’s house and called his m other. Am y’s m other tried to contact Am y, but Am y didn’t respond. Am y’s m other drove hom e from work im m ediately and entered the house through the garage. She saw the m aster bedroom in disarray, left the house and returned to the garage, and called 911. She told the 911 operator that her hom e had been burglarized, and she couldn’t find her daughter. Am y’s m other also called her husband at work. Am y’s father drove hom e from work and arrived while Am y’s mother was still there. He went inside the house to look around; during his search, he found Am y’s body in her bedroom lying in a pool of blood. Am y’s father ran back downstairs to his wife, took her outside, and told her that their daughter was dead. The two began to cry and rem ained outside the house until police arrived. When Pearland Police Departm ent officers arrived on the scene, Am y’s father told them that their daughter had been m urdered. Pearland police officers entered the hom e and found Amy’s body. Am y’s father told responding officers that [Matthews] had gotten her pregnant and that he believed [Matthews] had killed her. Officers determined that the hom e had been staged to appear as if it had been burglarized; Am y’s parents found nothing m issing. Pearland Police Detectives J ennifer Page and Cecil Arnold interviewed [Matthews] later that evening around 10 :0 0 p.m., after obtaining his address from the high school. At the time of this interview, the detectives had not had a chance to thoroughly review any of the evidence obtained from the crim e scene, nor had any security videos from [Am y and Matthews’s] high school or the guard 6 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 7 of 54 house at the entry to Am y’s neighborhood been obtained. The initial interview occurred at the hom e of Mavani Thornhill, who was allowing [Matthews] to use her address so that [Matthews] could enroll in a particular Pearland high school. [Matthews’s] parents m aintained a hom e in another part of Pearland zoned for a different high school. When Thornhill discovered the detectives were looking for [Matthews], she contacted [Matthews’s] parents and asked them to com e to her hom e with [Matthews]. Detectives Page and Arnold initially spoke with [Matthews] alone in Thornhill’s hom e, with the perm ission of [Matthews’s] parents and [Matthews]. This interview lasted for about an hour until Detective Arnold determ ined that [Matthews] was not being honest with the detectives. For example, [Matthews] first said he last saw Am y the previous day before adm itting that he had been with her earlier that day. He also said that he had som e type of feature on his cell phone that autom atically deleted texts before adm itting that he deleted the texts him self when his phone’s storage got full. [Matthews] accurately described the clothes Amy was wearing when her body was found. He also adm itted having sex with Am y on the day of her m urder, but claim ed he stopped because he was afraid he would hurt the babies. [Matthews] told the detectives he left Amy alone, upstairs, crying, and that he left the home through the back door. He told the detectives that he was supportive of Am y and never angry with her about the pregnancy. Detective Arnold told [Matthews] that the detectives were hearing rum ors from other students that [Matthews] and Am y had gotten into an argum ent, but [Matthews] denied that had happened. [Matthews] insisted that when he left, Am y was unharm ed. When pressed, [Matthews] had no idea who would have harm ed Am y. Detective Arnold stopped the interview and asked [Matthews’s] parents and Thornhill to come into the room to encourage [Matthews] to be honest and forthcom ing. [Matthews’s] parents and Thornhill did exactly that, encouraging him to tell the detectives what had happened and warning him that the truth would com e out through the evidence at the scene. [Matthews] continued to insist that he had not harm ed Am y. During the second exchange, the detectives collected som e of [Matthews’s] clothing, including [Matthews’s] athletic shorts, shirt, underwear, and athletic shoes, as well as a DNA swab for subsequent testing. [Matthews] told Detective Arnold that none of Amy’s blood would be on any of the clothing he wore to Am y’s house. During the interviews, he also agreed to turn over his cell phone to the detectives 7 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 8 of 54 and provided them with the pass code to access it. He told the detectives that he texted Am y around 4:0 0 p.m ., but that she didn’t respond, so he texted her again about an hour later. Subsequent analysis showed, however, that [Matthews] sent Am y three quick text m essages at around 3:25 p.m., with no responses from her. [Matthews] and his parents agreed to allow the detectives to accompany them to [Matthews’s] hom e, where [Matthews] turned over additional items, including another shirt, socks, blue jeans (that had been washed and bleached), and the backpack [Matthews] said he had taken to school on the day of the m urder. However, some of the clothing and the [backpack Matthews] provided were different from what Detective Page later saw [Matthews] wearing in a school security video recorded on the day of the m urder. A m ulticolored backpack, tan shoes, and a shirt sim ilar to what is seen on the video were later recovered during execution of a search warrant. According to Am y’s autopsy, she died from a combination of m anual strangulation and stabbing. The unborn twins suffocated and died in the wom b when Am y died. Fingernail clippings were taken from Am y during the autopsy; [Matthews’s] DNA was recovered from these clippings. The blue jeans, athletic shoes, tan shoes, and the m ulticolored backpack all tested positive for Am y’s DNA. DNA testing also confirm ed that [Matthews] had sex with Amy on the day of her m urder and that he was the father of the twin boys. [Matthews] testified during his trial. He acknowledged that he encouraged Am y to have an abortion and that he looked for ways that a m iscarriage m ight be induced. He admitted that it bothered him for Am y to discuss the pregnancy, that he had a short tem per, and that he was upset when other students tried to speak with him about the pregnancy. He explained that Am y was bleeding while they were having sex, which m ay have caused her blood to be found on his belongings. He also acknowledged that he had lied to investigators during his interview because he did not want his parents to know that he had skipped school to have sex with Am y. He testified that when he left on the day Am y was m urdered, she was collecting clothes to wash, not crying on the bed as he had told Detectives Arnold and Page. He further stated that he had lied to investigators about the clothes he was wearing on the day of the m urder. Matthew s v. State, 513 S.W.3d 45, 51-53 (Tex. App-Houston [14th Dist.] 20 16, pet. 8 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 9 of 54 ref’d), cert. denied, _ _ _ U.S. _ _ _ , 138 S. Ct. 279 (20 17) (footnotes [renum bered] in original). A jury found Matthews guilty on April 23, 20 15. The trial court autom atically sentenced Matthews to life in prison pursuant to § 12.31 of the Texas Penal Code, which governs punishm ent for capital felonies (Dkt. 19-40 , at 7-8). Under the Texas statutory punishm ent scheme that applies to juvenile offenders convicted of a capital offense, Matthews will not be eligible for parole until he has served forty years. See Tex. Penal Code § 12.31(a)(1); Tex. Gov’t Code § 50 8.145(b). IV. D ire ct Ap p e al On direct appeal to the Fourteenth Court of Appeals, Matthews challenged the process that resulted in his certification as an adult by the juvenile court, the constitutionality of the Texas punishm ent and parole scheme for juvenile capital offenders, and the sufficiency of the evidence to support his conviction (Dkt. 16-6, at 12-13). The state court of appeals affirm ed Matthews’s conviction and sentence. Matthew s, 513 S.W.3d at 51-53. The Texas Court of Crim inal Appeals refused Matthews’s petition for discretionary review on May 17, 20 17. The United States Suprem e Court denied Matthews’s petition for a writ of certiorari. Matthew s v. Texas, _ _ _ U.S. _ _ _ , 138 S. Ct. 279 (20 17). V. State H abe as Actio n Matthews filed an application for a state writ of habeas corpus under Article 11.0 7 of the Texas Code of Criminal Procedure, arguing that he was denied effective 9 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 10 of 54 assistance of counsel and due process during both his juvenile-certification proceeding and his crim inal trial (Dkt. 19-40 , at 10 -35). After considering an affidavit from one of Matthews’s trial attorneys (Dkt. 19-40 , at 59-61), the state habeas corpus court—which had also presided over the crim inal trial—entered findings of fact and conclusions of law, recomm ending that relief be denied (Dkt. 19-40 , at 210 -16). The Texas Court of Crim inal Appeals agreed and denied relief without a written order based on the trial court’s findings. See Ex parte Matthew s, No. WR-89,712-0 1 (Tex. Crim. App. J une 12, 20 19) (Dkt. 18-21, at 1). VI. Fe d e ral H abe as Pe titio n Through counsel, Matthews filed a federal petition for a writ of habeas corpus challenging his state-court conviction and sentence under 28 U.S.C. § 2254 (Dkt. 1). Matthews has filed a m em orandum of law that expands on his arguments for federal habeas relief (Dkt. 7). Matthews raises the following grounds for relief: 1. Trial counsel provided ineffective assistance during the juvenile-certification hearing by not objecting to inadm issible and harm ful docum entary evidence (Dkt. 1, at 6-7; Dkt. 7, at 3640 ). 2. Trial counsel provided ineffective assistance during the juvenile-certification hearing by not objecting to inadm issible and harm ful testim ony (Dkt. 1, at 6; Dkt. 7, at 42-46). 3. Trial counsel provided ineffective assistance during the juvenile-certification hearing by not investigating and presenting available evidence relating to the juvenilecertification factors (Dkt. 1, at 7; Dkt. 7, at 50 -56). 4. Trial counsel provided ineffective assistance during the juvenile-certification hearing by not objecting to the court’s 10 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 11 of 54 reliance on prior testim ony and probable-cause findings (Dkt. 1, at 7; Dkt. 7, at 66-72). 5. Matthews was denied due process during the juvenilecertification hearing when the state presented false and m isleading evidence about rehabilitative programs (Dkt. 1, at 11; Dkt. 7, at 82-88). 6. Matthews was denied due process during the juvenilecertification hearing when the State em phasized positive presum ptive blood-test results without m entioning negative results obtained during confirm atory testing (Dkt. 1, at 11; Dkt. 7, at 88-91). 7. Matthews was denied due process during the juvenilecertification hearing when the State presented testim ony from Dr. Fuller about the juvenile-certification factors (Dkt. 1, at 11; Dkt. 7, at 91-94). 8. Matthews was denied due process during the crim inal trial when the state presented false and m isleading evidence regarding presum ptive blood-test results when subsequent testing and confirm atory testing yielded negative results, showing no blood was found, or was never conducted (Dkt. 1, at 11; Dkt. 7, at 10 3-0 9). 9. Trial counsel provided effective assistance of counsel during the crim inal trial by failing to challenge the adm ission of presum ptive blood-test results where subsequent testing and confirm atory testing showed no blood was found (Dkt. 1, at 11; Dkt. 7, at 116). 10 . Trial counsel provided effective assistance of counsel during the crim inal trial when his attorney failed to object to the adm ission of num erous bad acts for which the State failed to give the requisite notice (Dkt. 1, at 11; Dkt. 7, at 124-30 ). 11. The juvenile court abused its discretion when it transferred the charges against him to crim inal court because it failed to state specific factual findings underlying the transfer, m isapplied the “sophistication and m aturity” factor that it was required to consider under § 54.0 2(f) of the Texas Fam ily Code, and 11 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 12 of 54 transferred the case without sufficient evidence to support the stated reasons (Dkt. 1, at 11; Dkt. 7, at 138-51). 12. The Texas punishment and parole schem e for juvenile capital offenders is facially unconstitutional under the Eighth Am endm ent because the court could not consider m itigating factors and there is no m eaningful opportunity for release (Dkt. 1, at 7; Dkt. 7, at 156-67). 13. The Texas punishment and parole schem e for juvenile capital offenders is facially unconstitutional as applied to him because his life sentence was im posed without regard to m itigating circum stances and affords no m eaningful opportunity for release (Dkt. 1, at 7; Dkt. 7, at 156-67). 5 The respondent has filed a m otion for sum m ary judgment (Dkt. 15) arguing that Matthews is not entitled to relief under the governing habeas corpus standard of review. Matthews has responded to the sum m ary-judgm ent m otion (Dkt. 28). This case is ripe for judicial review. STAN D ARD OF REVIEW The federal writ of habeas corpus exists to free a person who “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). While the m odern writ “plays a vital role in protecting constitutional rights,” Slack v. McDaniel, 529 U.S. 473, 483 (20 0 0 ), “[a] crim inal trial is the m ain event at which a defendant’s rights are to be determ ined, and the Great Writ is an extraordinary rem edy that should not be em ployed to relitigate state trials.” McFarland v. Scott, 512 U.S. 849, 859 (1994) (quotation om itted). Honoring 5 Matthews num bers his habeas claim s differently in his habeas petition and his m em orandum of law. The court follows the num bering in Matthews’s m em orandum of law. 12 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 13 of 54 principles of com ity and federalism that respect the finality of state judgm ents, the Suprem e Court has “found it necessary to im pose significant limits on the discretion of federal courts to grant habeas relief.” Calderon v. Thom pson, 523 U.S. 538, 554 (1998); see also Danforth v. Minnesota, 552 U.S. 264, 278 (20 0 8) (observing that courts have “adjust[ed] the scope of the writ in accordance with equitable and prudential considerations”). In addition, Congress also spoke to the deference federal courts m ust show state courts in habeas proceedings when it passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2241 et seq. Before a state prisoner can seek federal habeas corpus review he m ust exhaust rem edies by presenting all claim s in state court. See 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Matthews raised his claim s either on direct appeal or state habeas corpus review. 6 If an inm ate has presented his federal constitutional claim s to the state courts in a procedurally proper m anner, and the state courts have adjudicated their m erits, AEDPA provides for a deferential federal review. “[T]im e and again,” the Suprem e Court “has instructed 6 In an abundance of caution, Matthews’s m em orandum advanced a proposed fourteenth ground for relief based on Brady v. Mary land in anticipation that a review of the prosecution’s file m ay reveal “Brady evidence that was not disclosed” (Dkt. 1, at 20 ; Dkt. 7, at 178-79). In his response to the sum m ary-judgm ent m otion, Matthews states he will abandon his Brady claim if the respondent argues that it is unexhausted (Dkt. 28 at 28). In a supplem ent to the sum m ary-judgm ent m otion, the respondent argues that Matthews has not exhausted a Brady claim in state court (Dkt. 25). Because Matthews failed to exhaust a Brady claim in state court, provides no m eaningful discussion of his putative Brady claim , and has effectually abandoned the claim , the court will not address that issue further. 13 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 14 of 54 that AEDPA, by setting forth necessary predicates before state-court judgm ents m ay be set aside, erects a form idable barrier to federal habeas relief for prisoners whose claim s have been adjudicated in state court.” W hite v. W heeler, 577 U.S. 73, 77 (20 15) (quotation om itted). Under AEDPA’s rigorous requirem ents, an inm ate m ay secure relief only after showing that the state court’s rejection of his claim was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determ ined by the Suprem e Court of the United States,” or 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)(1),(2). AEDPA review exists only to “guard against extrem e m alfunctions in the state criminal justice system s . . . .” W oods v. Donald, 575 U.S. 312, 315 (20 15) (quotation om itted). To m erit relief under AEDPA, a petitioner m ay not m erely show legal error in the state court’s decision. See W hite v. W oodall, 572 U.S. 415, 420 (20 14) (stating being “m erely wrong” or in “clear error” will not suffice federal relief under AEDPA). “[F]ocus[ing] on what a state court knew and did,” Cullen v. Pinholster, 563 U.S. 170 , 182 (20 11), AEDPA requires inm ates to “‘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 fairm inded disagreem ent.’” W oodall, 572 U.S. at 420 (quoting Richter, 562 U.S. at 10 3); Berghuis v. Thom pkins, 560 U.S. 370 , 380 (20 10 ); W illiam s v. Tay lor, 529 U.S. 362, 413 (20 0 0 ). “If this standard is difficult 14 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 15 of 54 to m eet, that is because it was m eant to be.” Richter, 562 U.S. at 10 2. A petitioner challenging the factual basis for a state decision m ust show that it was an “unreasonable determ ination of the facts in light of the evidence . . . .” 28 U.S.C. § 2254(d)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (20 0 3). “[A] state-court factual determination is not unreasonable m erely because the federal habeas court would have reached a different conclusion in the first instance.” W ood v. Allen, 558 U.S. 290 , 30 1 (20 10 ). A federal habeas court m ust also presum e the underlying factual determinations of the state court to be correct, unless the inm ate “rebut[s] the presum ption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341; Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 20 0 4) (“As a federal habeas court, we are bound by the state habeas court’s factual findings, both im plicit and explicit.”). This case com es before the court on the respondent’s m otion for summ ary judgm ent. In ordinary civil cases, a district court considering a m otion for sum m ary judgm ent is required to construe the facts of the case in the light m ost favorable to the non-m oving party. See Anderson v. Liberty Lobby , 477 U.S. 242, 255 (1986). “As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to sum m ary judgm ent, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 20 2 F.3d 760 , 764 (5th Cir. 20 0 0 ). However, AEDPA modifies sum m ary-judgment principles in the habeas context, and Rule 56 “applies only to the extent that it does not conflict with the habeas rules.” Sm ith v. 15 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 16 of 54 Cockrell, 311 F.3d 661, 668 (5th Cir. 20 0 2), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (20 0 4); see Torres v. Thaler, 395 F. App’x 10 1, 10 6 n.17 (5th Cir. 20 10 ). “Therefore, § 2254(e)(1)—which m andates that findings of fact m ade by a state court are presum ed to be correct—overrides the ordinary sum m ary judgm ent rule that all disputed facts must be construed in the light m ost favorable to the nonm oving party.” Sm ith, 311 F.3d at 668. D ISCU SSION I. Claim s Aris in g fro m th e Ju ve n ile -Ce rtificatio n Pro ce s s Most of Matthews’s claims arise from the juvenile process that resulted in his trial as an adult. On J uly 8, 20 14, the juvenile court entered an order waiving jurisdiction and transferring his case to the district court. In doing so, the juvenile court considered and applied the provisions of Section 54.0 2 of the Texas Fam ily Code. In claim s one through seven and eleven through thirteen, Matthews challenges the constitutional underpinnings of Texas’s juvenile-certification scheme and the process it afforded him. A proper understanding of the juvenilecertification process fram es Matthews’s grounds for relief. Matthews com m itted his crim e as a juvenile. Texas law recognizes that juvenile offenders differ from adult crim inal defendants and thus warrant additional protections. See In re Hall, 286 S.W.3d 925, 927 (Tex. 20 0 9). A Texas juvenile court has exclusive original jurisdiction over a person com m itting crim inal acts before age seventeen. See Tex. Fam . Code §§ 51.0 2(2), 51.0 4. Section 54.0 2 16 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 17 of 54 of the Texas Fam ily Code governs the transfer of juvenile proceedings to district court. “Section 54.0 2 is not a punishm ent provision but a transfer provision.” Matter of A.K., 20 20 WL 1646899, at *7 (Tex. App.-Fort Worth, 20 20 ). Under that section, the juvenile court does not exam ine “the juvenile’s innocence or guilt but merely evaluates whether he should be tried as a juvenile or an adult in subsequent proceedings.” J.L.G. v. State, 1996 WL 682496, at *2 (Tex. App.Houston 1996). The question in a juvenile-certification proceeding is whether trial as an adult is in the best interests of both the juvenile and society. See Hidalgo v. State, 983 S.W.2d 746, 754 (Tex. Crim . App. 1999) (describing how the statute weighs a juvenile offender’s “potential danger to the public” against his “am enability to treatm ent”). Given that specific focus, Texas courts refer to juvenile-certification proceedings as a “nonadversarial preliminary hearing.” L.M.C. v. State, 861 S.W.2d 541, 542 (Tex. App.-Houston [14th Dist.] 1993, n.w.h.); see also Hidalgo v. State, 983 S.W.2d 746, 755-56 (Tex. Crim. App. 1999) (“J udicial transfer perm its the interests of both society and the juvenile to weigh against each other in a neutral setting.”). Statutory m andates govern these “‘critically im portant’” transfer proceedings. Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim . App. 20 14) (quoting Kent v. United States, 383 U.S. 541, 560 -62 (1966)). Under Texas law, a juvenile court m ay waive exclusive jurisdiction over a m inor and transfer him to a district for criminal prosecution only if certain conditions are m et: 17 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 18 of 54 (1) the child is alleged to have com m itted a felony, (2) the child m eets one of two age requirem ents, and (3) after a full investigation and hearing, the juvenile court determ ines that probable cause exists to believe the juvenile com mitted the alleged offense and the com munity’s welfare requires crim inal proceedings because of the serious nature of the offense or the child's background. Pipkin v. State, 329 S.W.3d 65, 69 (Tex. App.-Houston [14 Dist.], 20 10 ) (citing Tex. Fam. Code § 54.0 2(a)). The State bears the burden “to produce evidence to inform the juvenile court’s discretion as to whether waiving its otherwise-exclusive jurisdiction is appropriate in the particular case.” Moon v. State, 451 S.W.3d 28, 40 (Tex. Crim. App. 20 14). Before transferring the child, a juvenile court m ust order and obtain a full and com plete diagnostic study, social evaluation, and investigation of the child, his circum stances, and the circum stances surrounding the alleged offense. See Tex. Fam . Code § 54.0 2. Based on that review, the juvenile court m ust evaluate: (1) the sophistication and m aturity of the child; (2) the record and previous history of the child; and (3) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court. Tex. Fam . Code §§ 54.0 2(a), (f). With those factors, the State m ust “persuade the juvenile court, by a preponderance of the evidence, that the welfare of the com munity requires transfer of jurisdiction for crim inal proceedings, either because of the seriousness of the offense or the background of the child (or both).” Moon v. State, 451 S.W.3d 28, 40 -41 (Tex. Crim . App. 20 14). Transfer of a juvenile for prosecution as an adult 18 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 19 of 54 “should be regarded as the exception, not the rule.” Id. at 36. With that understanding, the court considers Matthews’s specific challenges to the juvenile-certification process and its application in his case. First, Matthews raises two constitutional challenges relating to the role of m itigating circum stances in the certification process (claim s twelve and thirteen). Second, Matthews contends that the juvenile court abused its discretion in transferring his case to the district court (claim eleven). Third, Matthews alleges that his attorney in the certification proceeding provided deficient perform ance by failing to (a) raise hearsay objections (claims one and two); (b) engage in an adequate investigation into the certification factors (claim three); and (c) raise other objections (claim four). Finally, Matthews argues that the State presented false evidence in the certification hearing (claims five through seven). Matthews exhausted each of these claim s in state court. Matthews m ust show that the state court’s denial of each claim was contrary to, or an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). A. Th e Pu n is h m e n t an d Paro le Sch e m e fo r Ju ve n ile Offe n d e rs ( Claim s 12 -13 ) Certification of Matthews as an adult cam e with “trem endous consequences” including being “subject to the retributive punishm ent of the criminal justice system instead of the rehabilitative goal of the juvenile justice system .” Hidalgo v. State, 983 S.W.2d 746, 755 (Tex. Crim. App. 1999). Once the trial court certified Matthews as an adult, he faced two charges of capital m urder. Because Matthews 19 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 20 of 54 had com mitted the m urders as a m inor, the Constitution m ade him ineligible for a death sentence. See Roper v. Sim m ons, 543 U.S. 551, 594 (20 0 5). However, section 12.31(a) of the Texas Penal Code provides for a m andatory punishm ent of life w ith the possibility of parole for a person guilty of com mitting a capital felony as a juvenile. Tex. Penal Code Ann. § 12.31(a)(1). In ground twelve of his petition, Matthews contends that the Texas punishm ent and parole scheme for juvenile offenders convicted of capital offenses is facially unconstitutional under the Eighth Am endm ent. Matthews com plains that the statutory schem e precludes “an opportunity to have a sentencing authority consider m itigating factors and provides no m eaningful opportunity for release” (Dkt. 1, at 19-20 ). In ground thirteen, Matthews contends that the statutory scheme is unconstitutional as applied to him because his mandatory sentence of life was im posed “without regard to mitigating circum stances” and without any “m eaningful opportunity for release based on rehabilitation” (Id. at 20 ). Matthews bases both claim s on Miller v. Alabam a, 567 U.S. 460 (20 12). In Miller, the Suprem e Court held that “the Eighth Am endm ent forbids a sentencing scheme that m andates life in prison without possibility of parole for juvenile offenders.” 567 U.S. at 479 (em phasis added) (citing Graham v. Florida, 560 U.S. 48, 75 (20 10 ) (“A State is not required to guarantee eventual freedom ,” but m ust provide “som e m eaningful opportunity to obtain release based on dem onstrated m aturity and rehabilitation”)). To comply with the Eighth Am endm ent, “a judge 20 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 21 of 54 or jury must have the opportunity to consider mitigating circum stances before im posing the harshest possible penalty for juveniles.” Miller, 567 U.S. at 489. Absent a finding that the offender’s crim es m ake him “the rarest of juvenile offenders, those whose crim es reflect perm anent incorrigibility,” a sentence of life without parole is an “unconstitutional penalty.” Montgom ery v. Louisiana, _ _ _ U.S. _ _ _ , 136 S. Ct. 718, 734 (20 16). Since Miller was decided the Texas Court of Crim inal Appeals has rejected claims that Texas Penal Code §12.31(a) is facially unconstitutional. In Lew is v. State, the Texas Court of Crim inal Appeals distinguished between the circum stances in Miller and those allowing for m andatory life sentences providing for parole: Miller does not forbid m andatory sentencing schem es. The m andatory nature of a sentencing schem e is not the aspect that precludes rehabilitation; rather, the sentencing schem e in Miller was unconstitutional because it denied juveniles convicted of m urder all possibility of parole, leaving them no opportunity or incentive for rehabilitation. Life in prison with the possibility of parole leaves a route for juvenile offenders to prove that they have changed while also assessing a punishment that the Legislature has deem ed appropriate in light of the fact that the juvenile took som eone’s life under specified circum stances. . . . Miller does not entitle all juvenile offenders to individualized sentencing. It requires an individualized hearing only when a juvenile can be sentenced to life without the possibility of parole. 428 S.W.3d 860 , 863 (Tex. Crim . App. 20 14). The Texas Court of Crim inal Appeals has succinctly held that “[j]uvenile offenders sentenced to life with the possibility of parole are not entitled to individualized sentencing under the Eighth 21 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 22 of 54 Am endm ent.” Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim . App. 20 14); see also United States v. Sparks, 941 F.3d 748, 754 (5th Cir. 20 19) (“[S]entences of life with the possibility of parole or early release do not im plicate Miller.”). Matthews attem pts to m inimize the distinction between the Texas statute and Miller because a life-sentenced capital Texas inm ate m ust serve his entire sentence without becoming eligible for good tim e credits or other m eans of early release. See Tex. Gov’t Code § 50 8.145(b) (“An inm ate serving a life sentence under Section 12.31(a)(1), Penal Code, for a capital felony is not eligible for release on parole until the actual calendar tim e the inm ate has served, without consideration of good conduct tim e, equals 40 calendar years.”). Matthews argues that the extended period before parole eligibility falls within the Miller Court’s criticism of when a sentencing schem e for juvenile offenders offers no “m eaningful opportunity to obtain release based on dem onstrated m aturity and rehabilitation.” Miller, 540 U.S. at 75. Miller, however, only requires States to afford juvenile offenders facing life im prisonm ent a potential opportunity, through parole or by other m eans, for release. “A State is not required to guarantee eventual freedom to a juvenile offender” and is not required “to release that offender during his natural life.” Graham v. Florida, 560 U.S. 48, 75 (20 10 ) (discussing the Eight Am endm ent im plications of a statute addressing a non-hom icide crim e); see also Virginia v. LeBlanc, _ _ _ U.S. _ _ _ , 137 S. Ct. 1726, 1729 (20 17) (finding that the possibility of 22 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 23 of 54 geriatric release rendered a juvenile sentencing statute constitutional). Matthews, in essence, asks for an extension of Miller to hold that a State’s sentencing schem e cannot require a mandatory term of years before parole eligibility of capitally sentenced juvenile offenders. The nonretroactivity rule of Teague v. Lane, 489 U.S. 288 (1989), would bar Matthew’s proposed extension of Miller on federal habeas review. The state court of appeals overruled both claims twelve and thirteen on direct appeal because “the court of last resort in crim inal m atters in this State [the Texas Court of Crim inal Appeals] has unequivocally spoken on both of his constitutional issues and rejected them .” Matthew s, 513 S.W.3d at 62. The Texas court correctly held that Miller does not apply because Matthews’s sentence allowed for his parole. Matthews has not shown that the state court’s decision was contrary to, or an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). Matthews, therefore, has not shown any entitlem ent to habeas relief on claim s twelve and thirteen. B. Abu s e o f D is cre tio n by th e Ce rtificatio n Co u rt ( Claim 11) The eleventh claim in Matthews’s federal petition challenges the process by which the juvenile court waived its jurisdiction. Matthews claim s that the juvenile court erred when it “1) failed to state the specific factual findings of the court undergirding its reasons for transfer; 2) m isapplied the sophistication and m aturity prong; and 3) [certified him as a an adult] where the evidence adm itted 23 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 24 of 54 at the transfer hearing was insufficient to support the court’s stated reasons for transfer.” (Dkt. 28, at 42-43). Based on those alleged errors, Matthews com plains that the juvenile court abused its decision in waiving jurisdiction. For the m ost part, Matthews asks this court to decide whether the juvenile court correctly applied state law in transferring his case to district court. Whether or not the state courts correctly applied Texas law is not a m atter for federal habeas concern. Courts have long held that “it is not the province of a federal habeas court to reexam ine state-court determinations on state-law questions.” Estelle v. McGuire, 50 2 U.S. 62, 67-68 (1991); see W ilson v. Corcoran, 562 U.S. 1, 5 (20 10 ) (“federal habeas corpus relief does not lie for errors of state law”) (internal quotation m arks and citation om itted). The court looks to the application of federal constitutional principles, not state law, in assessing the procedure Matthews received before transfer to state district court. The Constitution protects juveniles facing the possibility of trial as an adult. In Kent v. United States, the Suprem e Court characterized such transfer proceedings as “critically important,” and held that any juvenile-court waiver proceedings m ust at least “m easure up to the essentials of due process and fair treatm ent.” 383 U.S. 541, 560 -62 (1966). The Suprem e Court has not, however, specified “the exact nature of the constitutional requirements of due process at a juvenile transfer hearing.” Spy tm a v. How es, 313 F.3d 363, 367-68 (6th Cir. 20 0 2). The Kent Court did not require that a waiver hearing “conform with all of 24 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 25 of 54 the requirem ents of a crim inal trial or even of the usual administrative hearing.” Kent, 383 U.S. at 562. Instead, as a baseline, a juvenile has “a due process and Sixth Am endm ent right to a hearing, a statem ent of the reasons for the juvenile judge’s decision to transfer the case, and assistance of counsel.” Gonzales v. Tafoy a, 515 F.3d 10 97, 1115 (10 th Cir. 20 0 8) (citing Kent, 383 U.S. at 557); see also Atkins v. Hollow ay , 792 F.3d 654, 663 (6th Cir. 20 15). In the end, a federal court’s concern “is whether [the habeas] petitioner received due process as required by Kent, not whether the state court m eticulously complied with” the precise dictates of state law. Spy tm a, 313 F.3d at 369. Matthews challenges the sufficiency of the state court’s written order, its application of statutory factors, 7 and its assessm ent of the underlying evidence. Here, the juvenile court held a hearing to consider the waiver of jurisdiction. Counsel represented Matthews at the hearing. The State called four witnesses: two juvenile probation officers, an appointed psychiatrist, and a Pearland Police Departm ent detective. While Matthews’s attorney did not call any witnesses, nothing in the record suggests that anything im paired his ability to represent his 7 Matthews contends that the juvenile court m isapplied the sophistication and m aturity prong of Tex. Fam . Code § 54.0 2(a) when considering transfer (Dkt. 7, at 143). The appellate court adm itted that “it m ay be that the juvenile court m isapplied this factor by focusing on whether [Matthews] was sufficiently sophisticated and m ature to aid in his defense.” Matthew s, 513 S.W.3d at 57. Nevertheless, the appellate court found that “the juvenile court's other factual bases for transfer are supported by legally and factually sufficient evidence.” Id. Matthews has not provided any law suggesting that possible error in the consideration of that factor alone would warrant reversal. Again, Texas’ interpretation of its own statutory language is not a m atter for federal consideration. 25 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 26 of 54 client. By arguing that the juvenile court “failed to state the factual underpinnings of its conclusions and grounds for transfer in its transfer order,” Matthews m isstates the record (Dkt. 7, at 141). Under Texas law, a juvenile court waiving jurisdiction m ust “state specifically” its reasons for certification. Moon, 451 S.W.3d at 40 ; see also Tex. Fam . Code § 54.0 2(h). The Court of Criminal Appeals has explained that the statute requires a juvenile court to “take pains to ‘show its work,’ as it were, by spreading its deliberative process on the record, thereby providing a surefooted and definite basis from which an appellate court can determ ine that its decision was in fact appropriately guided by the statutory criteria, principled, and reasonable[.]” Moon, 451 S.W.3d at 49. The state appellate court “disagree[d]” with Matthews’s argum ent “that the transfer order did not state the factual underpinnings of the court’s conclusions and grounds for transfer.” Matthew s, 513 S.W.3d at 56. The juvenile court entered a written order “not[ing] that it was considering the factors m andated by section 54.0 2(f) of the J uvenile J ustice Code” and “then m ade the following findings and determ inations: • • • • • • • [Matthews] was alleged to have comm itted capital m urder under Texas Penal Code section 19.0 3; [Matthews] was seventeen years old at the tim e of the hearing; [Matthews] was sixteen years old at the tim e of the offense; [Matthews’s] father resides in Brazoria County and his m other resides in Harris County; No adjudication hearing had been conducted; The parties were properly notified of the hearing; Prior to the transfer hearing, a “com plete diagnostic study” of [Matthews] had been com pleted by Dr. Michael Fuller; 26 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 27 of 54 • • • • • There was probable cause to believe that [Matthews]com m itted the felony offense of capital murder against a person; [Matthews] was of sufficient sophistication and m aturity to be treated as an adult because he could aid an attorney in his defense; [Matthews’s] records and previous history m ade the prospects of adequate protection for the public and the likelihood of reasonable rehabilitation by the use of the J uvenile J ustice Court doubtful; Because of the extrem e and severe nature of the offenses alleged, the prospects of adequate protection for the public and the likelihood of reasonable rehabilitation through the J uvenile J ustice system were doubtful; and After considering all of the testim ony, diagnostic study, social evaluation, and full investigation of [Matthews] and the circum stances of the offenses alleged, and because of the seriousness of the alleged offenses and background of appellant, the welfare of the com munity required crim inal proceedings. Matthew s, 513 S.W.3d at 56-57. Given the protections afforded to him in juvenile court, Matthews has not shown federal constitutional error in the process or decision that resulted in his transfer to district court. In sum , Matthews has not shown that the state court’s rejection of these claim s was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). C. Claim s o f Fals e Evid e n ce ( Claim s 5-8 ) Matthews raises three claim s of specific due-process errors involving the presentation of false evidence in his waiver hearing. In Giglio v. United States, 40 5 U.S. 150 , 153 (1972), the Suprem e Court held that “deliberate deception of a court and jurors by the presentation of known false evidence is incom patible with 27 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 28 of 54 rudim entary dem ands of justice.” Id. at 153 (quotation om itted). “To establish a due process violation based on the State’s knowing use of false or m isleading evidence, [petitioner] m ust show (1) the evidence was false, (2) the evidence was m aterial, and (3) the prosecution knew that the evidence was false.” Nobles v. Johnson, 127 F.3d 40 9, 415 (5th Cir. 1997) (citing Giglio, 40 5 U.S. at 153– 54). Matthews raised his false-evidence claims on state habeas review. The state habeas court found that Matthews had “fail[ed] to show that the State presented either false or m isleading evidence during the juvenile certification hearing through” the testimony of (1) “Martha Mosshart regarding the availability and effectiveness of rehabilitative programs at the Texas J uvenile J ustice Departm ent, specifically with regard to the Capital and Serious Violent Offender Treatm ent program ”; (2) “Lt. Cecil Arnold regarding positive presum ptive blood[-]test results on the [Matthews’s] shoes, pants and backpack”; and (3) “Dr. Michael Fuller, specifically, with regard to whether his findings were inconsistent with the [Matthews’s] prior m edical history.” State Habeas Record at 212. On federal habeas review, the court presum es that those factual findings are correct unless Matthews shows otherwise by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). If he can show that the state court was incorrect in its underlying findings, Matthews still bears the burden under AEDPA of showing that the state habeas court’s decision based on those facts was contrary to, or an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). Specifically, the state habeas 28 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 29 of 54 court concluded that Matthews “fail[ed] to show that any of the State's evidence . . . was in fact false or otherwise created a false impression . . . during . . . the juvenile[-]certification proceeding . . . .” State Habeas Record at 214. 1. J uvenile Probation Officer First, Matthews contends that “[t]he State presented false and m isleading evidence through Martha Mosshart, whose testim ony distorted and concealed the ‘procedures, services, and facilities currently available to the juvenile court’” (Dkt. 7, at 84) (quoting Tex. Fam . Code § 54.0 2(f)(4)). Mosshart was a probation officer who had been a form er caseworker for the Texas Youth Com m ission (now known as the Texas Departm ent for J uvenile J ustice (TDJ J )). Matthews concedes that the State called her “to discuss a program about which she adm ittedly had indirect and incom plete knowledge” (Dkt. 7, at 84). Mosshart explained that, because of his crime, TDJ J would likely place Matthews in the Giddings Unit. J .R.R. Vol. 3 at 17. 8 Mosshart testified about a program she described as the “violent offender treatm ent program .” Mosshart, however, did not have personal knowledge of the program s offered by the Giddings Unit. Instead, Mosshart based her testim ony on a conversation she had with som eone at the Giddings Unit. The court of appeals sum m arized Mosshart’s testimony as follows: She testified that the TDJ J has had extrem ely few capital offenders. In fact, from 20 0 7 to 20 12, only twelve capital offenders have been com mitted to the TDJ J out of a total of 7,496 com m itm ents. All of those capital offenders were given determ inant sentences; none were 8 The court will follow Matthews’s citation to the J uvenile Reporter’s Record as “J .R.R.” 29 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 30 of 54 sim ply com m itted to TDJ J . She stated that these juveniles generally are transferred to the Texas Departm ent of Criminal J ustice (TDCJ ) once they reach a certain age—usually proceedings to transfer them begin within a m onth of their nineteenth birthdays. Mosshart explained that the TDJ J has a program for violent offenders, but that there is generally a wait list to get into the program . She agreed that because of the nature of the alleged conduct, [Matthews] would likely get priority status for the program, however. Mosshart suggested that a comm itm ent to TDJ J alone would not be appropriate for the type of offense that [Matthews] was alleged to have com mitted—i.e., that [Matthews] should be given a determ inate sentence even should the juvenile court not waive jurisdiction. She noted there was only a short window of tim e to get [Matthews] into this treatm ent program , given his age and likely im pending transfer to TDCJ when he turned nineteen. This evidence supports the juvenile court's conclusion concerning the likelihood of [Matthews’s] reasonable rehabilitation through the J uvenile J ustice System . Matthew s, 513 S.W.3d at 59-61. Matthews has not proven that the State knowingly presented false evidence to the juvenile court. Nothing in the record indicates that the State engaged in intentional m alfeasance. Instead, Matthews assum es that the State should have known that the inform ation it put before jurors was false. In doing so, Matthews points out various concerns with Mosshart’s testimony, m any of which derive from com parisons between her testim ony and TDJ J reports. On state habeas review, however, Matthews described the core of his concerns as follows: Probation Officer Martha Mosshart’s testimony was false and m isleading because her testim ony: 1) described the treatm ent program m erely as a “violent offender treatm ent program,” rather than recognizing that the program is called the Capital and Serious Violent Offender Treatm ent Program and was especially designed for juvenile capital offenders; 2) repeatedly em phasized that Matthews was unlikely to get into the program based on available space and population. 30 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 31 of 54 State Habeas Record at 174. Matthews first complains that Mosshart gave incorrect testimony about the nam e of the program at the Giddings Unit. Although Mosshart described the program as the “violent offender treatm ent program ,” its official nam e is the “Capital and Serious Violent Offender Treatm ent Program .” (Dkt. 7 at 84). Mosshart’s testim ony about the nam e of the program is an incom plete shortening of its title. Given the whole of her testim ony, Mosshart did not indicate that all capital offenders would be wholly ineligible for its services. To the extent Matthews complains that Mosshart em phasized that space and availability would lim it his participation in the program, he m isreads her testim ony. The State fram ed her testimony in the context of whether she could guarantee participation in the program —som ething that even the statistics Matthews provided on habeas review could not do. Throughout her testim ony Mosshart em phasized that Matthews’s age and the seriousness of his offense would greatly influence his custody and access to program s. Matthews’s argum ents have little to do with the key issue before the juvenile court. For exam ple, Matthews says that “[c]ontrary to the prosecutor’s misleading questions and Mosshart’s answers, the program does accept teenagers who are 17 years old, as Matthews was at the time of the hearing” (Dkt. 7, at 86). But the decision the juvenile court faced did not concern Matthews’s eligibility for treatm ent at that precise m om ent. At the tim e of the waiver hearing held on J une 31 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 32 of 54 4, 20 14, Matthews was seven m onths shy of his eighteenth birthday. By the time his case cam e to trial on April 14, 20 15, Matthews was already over the age of eighteen. Matthews’s age was a concern for the juvenile court to consider because the State would likely seek to transfer his custody to the Texas Departm ent of Crim inal J ustice soon after any juvenile-court conviction. J .R.R. Vol. 3 at 20 -21. As the juvenile court considered his age, it would also consider his eligibility for rehabilitative program s. Matthews now argues that TDJ J records indicate that the program s are m ore widely available than Mosshart’s testim ony suggested. However, Matthews does not differentiate the data in the sam e m anner as provided by Mosshart’s testim ony. Matthews describes participation, and ultim ate success levels, of “those youth dem onstrating need into the program ” (Dkt. 7, at 64), but does not provide details on the participation and success rate of juveniles who, like Matthews, faced capital-murder charges (and m ore particularly involving three victim s). Considering the whole of Mosshart’s testim ony, Matthews has not shown that the prosecution should have known that she testified falsely, much less that it was m aterial as understood by Suprem e Court precedent. Ultim ately, considering Matthews’s false-evidence claim under AEDPA’s deferential standard, he has not shown that the state habeas court’s decision was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). Habeas relief is not available on this claim . 32 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 33 of 54 2. Presumptive Blood-Test Results The juvenile court understood its obligation to decide whether “probable cause [existed] to believe that [Matthews] com mitted the offenses alleged in the State’s m otion[.]” J .R.R. Vol. 3 at 9. In an effort to show probable cause, the prosecution adduced testim ony concerning blood traces found on clothing Matthews allegedly wore when he comm itted the offense. Matthews argues that “[t]he State presented false and m isleading evidence regarding presum ptive bloodtest results at the juvenile certification hearing.” (Dkt. 37, at 88). The State called Cecil Arnold, a detective with Pearland Police Departm ent, to testify about the police investigation. Detective Arnold explained that testing presum ptively identified blood on the blue jeans, backpack, and shoes Matthews allegedly wore during the m urder. J .R.R. Vol. 3 at 55-56. Matthews argues that “Detective Arnold never told the juvenile court that when these items were subjected to confirmatory testing that the confirmatory test results were negative with respect to each of these item s.” (Dkt. 7, at 88-89). Matthews concedes that the inform ation was not inaccurate—test results presum ptively indicated the presence of blood. Matthews, however, contends that the testimony was false or misleading because it was incom plete. The State subm itted the test results into evidence as an exhibit during the hearing, and the report indicated that the conclusive testing was negative for blood. Matthews acknowledges that “[t]hose negative results im m ediately followed the presum ptive 33 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 34 of 54 results on the report entered into evidence, but was never m ade a point by the State.” (Dkt. 7, at 89). A petitioner m ay predicate a false-evidence claim on technically correct, but still m isleading, testim ony. Blankenship v. Estelle, 545 F.2d 510 , 513 (5th Cir. 1977) (stating that a court “will not tolerate prosecutorial participation in technically correct, yet seriously m isleading, testimony which serves to conceal the existence of a deal with m aterial witnesses”). Here, the State introduced into evidence a report providing the juvenile court a com plete understanding of the role blood analysis played in the police investigation. And the juvenile-court judge’s role at that stage frames the concerns raised by the incom plete evidence. The State did not bear the burden of proving his guilt beyond a reasonable doubt in the waiver hearing. The State only needed to provide the juvenile court enough inform ation to find probable cause. The presum ptive blood test gave the State an opportunity to suggest that Matthews had suspiciously bleached his clothing after the m urder as one facet of his efforts to conceal his involvem ent. The circum stances of the case as presented through additional testim ony and evidence m ore-than-allowed for the juvenile-court judge to find probable cause independent of any testim ony about presumptive blood results. Considering the whole of the inform ation before the juvenile court, Matthews has not shown that the habeas court’s resolution of this claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). 34 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 35 of 54 3. Forensic Psychiatric Testimony Finally, Matthews contends that the State presented false evidence through the testimony of its expert witness, forensic psychiatrist Dr. Michael Fuller. Dr. Fuller exam ined Matthews, at the order of the juvenile court, for purposes of evaluating whether Matthews should be transferred to adult crim inal court. The State presented Dr. Fuller’s testim ony to assist the juvenile court in deciding the various factors needed for the waiver inquiry, particularly whether Matthews was “sufficiently sophisticated and m ature to be tried as an adult” and “sufficiently m ature to aid [his] attorney in [his] defense.” J .R.R. Vol. 3 at 9. As recounted by the appellate court, Dr. Michael Fuller exam ined [Matthews] for the certification hearing. Fuller testified that [Matthews] had no significant m ajor psychiatric illness and that [Matthews] could think clearly and understand ageappropriate concepts. Fuller concluded that [Matthews] was intellectually and em otionally average for his age at the tim e of the testing—seventeen—and that [Matthews] understood the charges against him and what it m eant to be certified as an adult. Fuller testified that it would be “appropriate and reasonable” for the juvenile court to certify [Matthews] as an adult. Matthew s, 513 S.W.3d at 59-61. The State did not rely on Dr. Fuller’s testim ony alone to show that Matthews should be certified to stand trial as an adult. The State verified som e of his testim ony through that of Victoria Gardzina, the deputy chief of probation for Brazoria County J uvenile J ustice Departm ent. Gardzina testified that Matthews did not show any signs of m ental instability or intellectual disability, had had 35 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 36 of 54 problem s at school in the past but few recently, and had acted like an adult when dealing with problem s while in custody. J .R.R. Vol. 3 at 46-51. On state habeas review, Matthews presented an affidavit from Dr. Stephen Thorne. In his affidavit, Dr. Thorne outlined a litany of issues Dr. Fuller either under-investigated or wholly m issed in his evaluation. Matthews summ arized the issues Dr. Thorne identified which allegedly render Dr. Fuller’s testim ony false and m isleading: Matthews had long dealt with very elevated levels of depression; that his behavior included him crying and becoming very em otional; that he exhibited ADHD-type sym ptom s; im pulsivity problems; problems com pleting tasks; problem s m aintaining focus; that he was in the bottom 0 -25% range in social relationships and age-appropriateness; that Matthews was simple-m inded, unsophisticated, and psychologically and em otionally im m ature with im pulsive tendencies; that his IQ was in the 30 th percentile for his age group; that for a significant period of his life he had mild to m oderate periods of depression, sadness, and anxiety; that he worried a lot; that he was very self-conscious; that he was m ore stressed than not on a daily basis and had issues with substance abuse. (Dkt. 7, at 93-94). As an initial m atter, Matthews has not shown that, even accepting Dr. Thorne’s conclusions as true, the State had any inkling that its expert had not perform ed a full diagnostic review of Matthews. Further, Matthews has not shown that the State should have known that his testim ony was false. The State verified m uch of Dr. Fuller’s testim ony about his current mental state through Gardzina, Matthews’s probation officer. Finally, Matthews has possibly shown that Dr. Fuller could have investigated m ore or that experts m ay come to different conclusions 36 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 37 of 54 about various psychological issues, but Matthews has not shown that the testim ony adduced by the State was necessarily false. For those reasons, the court finds that Matthews has not shown that the state court’s decision was unreasonable under AEDPA. D. In e ffe ctive As s is tan ce o f Co u n s e l ( Claim s 1-4 ) In claims one through four, Matthews contends that he was denied effective assistance of counsel during his juvenile-certification proceeding. Specifically, Matthews claims that trial counsel provided deficient representation by failing to (1) object to docum entary evidence based on hearsay; (2) object to testim ony based on hearsay; (3) investigate and present available evidence relating to the certification factors; and (4) object to the juvenile court’s acceptance of prior testim ony and probable cause findings from prior hearings. Matthews raised these claims on state habeas review. A child in a Texas juvenile court has the right to effective representation at a transfer hearing. See Tex. Fam . Code § 51.10 (child entitled to representation by counsel at transfer hearing and m ay not waive right to counsel); see also Kent, 383 U.S. at 561-62 (finding that a juvenile offender has the right to effective assistance of counsel during juvenile-certification proceedings). On federal habeas review ineffective-assistance claim s are analyzed under the clearly established legal standard set forth in Strickland v. W ashington, 466 U.S. 668 (1984). To prevail under the Strickland standard, a defendant 37 m ust dem onstrate both Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 38 of 54 constitutionally deficient perform ance by counsel and actual prejudice as a result of the alleged deficiency. See id. at 687. “Unless a defendant m akes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that rendered the result unreliable.” Id. Thus, the failure to dem onstrate deficient perform ance or prejudice is fatal to an ineffective-assistance claim . See id. at 683; Green v. Johnson, 160 F.3d 10 29, 10 35 (5th Cir. 1998). To demonstrate deficient perform ance, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. This is a “highly deferential” inquiry in which “counsel is strongly presumed to have rendered adequate assistance” and that the challenged conduct was the product of reasoned trial strategy. Id. at 690 . To overcom e this presum ption, a defendant m ust identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgm ent. Id. at 690 . A showing of m ere error by counsel, even if professionally unreasonable, does not warrant setting aside the judgm ent of a crim inal proceeding if the error had no effect on the judgm ent. Id. at 691. To establish the requisite prejudice, “[t]he 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.” Id. at 694. “The likelihood of a different result m ust be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (20 11). 38 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 39 of 54 Strategic decisions m ade by counsel during trial are entitled to substantial deference and are not subject to hindsight or judicial second-guessing on federal habeas review. See Strickland, 466 U.S. at 689 (em phasizing that “[j]udicial scrutiny of counsel’s perform ance m ust be highly deferential” and that “every effort [m ust] be m ade to elim inate the distorting effects of hindsight”); Lam b v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999) (“Inform ed strategic decisions of counsel are given a heavy m easure of deference and should not be second guessed.”); Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993) (“Given the alm ost infinite variety of possible trial techniques and tactics available to counsel, this Circuit is careful not to second guess legitim ate strategic choices.”). A federal habeas corpus court m ay not find ineffective assistance of counsel m erely because it disagrees with counsel’s chosen trial strategy. Crane v. Johnson, 178 F.3d 30 9, 312 (5th Cir. 1999). “So long as counsel m ade an adequate investigation, any strategic decisions m ade as a result of that investigation fall within the wide range of objectively reasonable professional assistance.” Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir. 20 0 3) (citing Sm ith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 20 0 2) (internal citations and quotation m arks om itted)). 1. Hearsay Objections (Claim s One and Two) In his first and second claim s, Matthews claim s that trial counsel should have objected to inadm issible hearsay testim ony during the certification hearing. Specifically, Matthews claims trial counsel should have objected to various item s 39 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 40 of 54 of documentary evidence and testim ony, such as that from Mosshart relaying inform ation she received from the Giddings unit. When the State m oved to introduce the documentary evidence, trial counsel stated: “Well, I would object to hearsay; but I don’t think hearsay applies to this proceeding.” J .R.R. Vol. 3 at 14. Matthews’s argum ent presupposes that counsel should have raised objections based on an unsettled area of Texas law. On one hand, the respondent cites a body of law holding that a juvenile court m ay consider hearsay evidence in a waiver hearing. “The juvenile court can determ ine probable cause in a nonadversary preliminary hearing through the use of hearsay besides written and oral testim ony.” Grant v. State, 313 S.W.3d 443 (Tex. App.-Waco 20 10 , no pet.) (citing In re D.W .L., 828 S.W.2d 520 , 524 (Tex. App.-Houston [14th Dist.] 1992, no pet.)). “It has been held that neither the Sixth Am endm ent nor the hearsay rule applies to a juvenile certification hearing.” Milligan v. State, 0 3-0 4-0 0 531-CR, 20 0 6 WL 357880 , at *4 (Tex. App.-Austin Feb. 16, 20 0 6, pet. ref’d) (citing In re S.J.M., 922 S.W.2d 241, 242 (Tex. App.-Houston [14th Dist.] 1996, no writ); Alford v. State, 80 6 S.W.2d 581, 582 (Tex. App.-Dallas 1991), aff'd, 866 S.W.2d 619, 625 (Tex. Crim. App. 1993)). On the other hand, Matthews refers to a state statute which provides: “Except as otherwise provided by this title, the Texas Rules of Evidence applicable to crim inal cases and Articles 33.0 3 and 37.0 7 and Chapter 38, Code of Crim inal Procedure, apply in a judicial proceeding under this title.” Tex. Fam . Code § 40 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 41 of 54 51.17(c). One Texas appellate court has recently recognized that “no published Texas case has squarely addressed whether section 51.17(c) of the J uvenile J ustice Code m akes the Rules of Evidence and Chapter 38 of the Code of Criminal Procedure applicable to a transfer hearing.” Matter of H.Y., 512 S.W.3d 467, 474 (Tex. App.Houston [1st Dist.], 20 16). At least one court has cited that statute and ruled in an unpublished decision that “a juvenile court is not required to rule on the adm issibility of evidence during a transfer hearing.” Id. (citing Navarro v. State, Nos. 0 1-11-0 0 139-CR & 0 1-11-0 0 140 -CR, 20 12 WL 3776372, at *6 (Tex. App.Houston [1st Dist.] Apr. 17, 20 13, pet. ref'd) (m em . op., not designated for publication)). More often, Texas appellate courts avoid addressing this issue by relying on separate reasons for their decisions. See, e.g., Matter of D.S., 20 17 WL 31870 21, at *5 (Tex. App.-Fort Worth 20 17). This federal court lacks authority to resolve the uncertainty in Texas law. However, on state habeas review trial counsel provided an affidavit responding to Matthews’s argum ent that he should have objected on hearsay grounds. Trial counsel averred that he had consulted a treatise concerning the application of hearsay rules in certification hearings. State Habeas Record at 62-63. After doing so, he explained: While I do not have any independent m em ory of any specific com m ents that I made to the Court regarding the adm issibility of evidence, I am confident that it was in discussions regarding the holdings the cases cited in [Texas J uvenile Law by Robert Dawson]. I 41 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 42 of 54 do understand that Texas Rules of Evidence 10 1(b) does not explicitly provide an exclusion to the rules of evidence for certification proceedings, however it appeared to m e that case law has provided an exception. In fact, there are num erous cases that specifically state that the hearsay rule does not apply. My objections would have been without merit. State Habeas Record at 59. Trial counsel considered m aking a hearsay objection but, after reviewing the law, decided that precedent would not support his objection. Given the unsettled nature of Texas law, and Matthews’s failure to show by a reasonable probability that the juvenile court would not have ordered the transfer had counsel objected, he has not dem onstrated an entitlement to relief under AEDPA. 2. The Certification Factors (Claim Three) Matthews contends that trial counsel provided deficient representation in preparing for, and presenting evidence in, the waiver hearing. Matthews’s argument follows three separate paths. First, Matthews contends that trial counsel should have interviewed people who knew him and called them to testify in his behalf. Matthew supports this argument with eleven affidavits from people who could testify about his lack of m aturity and his potential for rehabilitation. Second, Matthews contends trial counsel should have retained an expert witness to counter the testimony of Dr. Fuller. In doing so, Matthews relies heavily on Dr. Thorne’s affidavit which cam e to much different conclusions about his m aturity and sophistication than those presented to the juvenile court. Finally, Matthews contends that correct inform ation about the Capital and Serious Violent Offender 42 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 43 of 54 Treatm ent Program would have caused the juvenile court to retain jurisdiction. (Dkt. 7, at 51-52). Matthews devotes significant briefing to fleshing out the unpresented testimony and prognosticating how it m ay have influenced the juvenile court’s decision. The respondent relies on trial counsel’s state habeas affidavit which provides an explanation of the investigation he conducted for the certification hearing (Dkt. 15, at 42). The bulk of respondent’s argum ent, however, focuses on Strickland’s prejudice prong. The respondent especially highlights that a police officer testified that Matthews would be a flight risk and opined that Matthews’s “‘criminal history show[ed] escalating behavior from physical assault, thefts, credit[-]card abuse, all the way to where we are now, [and] the fact that Matthews was using a fake address so that he could attend a different school.’” Matthew s, 513 S.W.3d at 59-60 . The officer also testified that Matthews “was able to lie without hesitation regarding [his] whereabouts on the afternoon of the m urder, as well as what he had been wearing.” See id. In addition to that background, the respondent argues that Matthews’s new evidence does not create a reasonable probability that the juvenile court would have retained jurisdiction: None of the evidence Matthews argues should have been presented could have m itigated the heinousness of Matthew’s crim e. Matthews did not com m it capital m urder by shooting a store clerk during the course of a robbery, or by shooting rival gang m em bers, or even by taking a gun to school and shooting his classm ates. As discussed in the Statem ent of Facts, supra., Matthews went to his param our’s house. He had sex with her. He then stabbed and strangled her because she was pregnant with his twins. He then tried to cover up the 43 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 44 of 54 crim e by lying to the police and hiding evidence. Matthews[’s] actions spoke m ore to his m aturity and sophistication level than anything counsel could have presented. In fact, the Director is hard pressed to think of a crim e m ore fitting for certification than this one. Matthews killed not only his teenage param our, but also his children. (Dkt. 15, at 41). A court sitting on habeas review m ay deny a claim based on only one of the Strickland prongs. See Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 20 0 5) (“Failure to prove either prong will defeat an ineffective assistance claim.”). The state habeas court explicitly found that Matthews “fail[ed] to demonstrate any allegedly deficient perform ance prejudiced his case” and “no reasonable probability that, but for the conduct com plained of, that the result of . . . the juvenile certification proceeding . . . would have been different.” State Habeas Record at 214. Even considering the m itigating effect that Matthews’s habeas evidence m ay have had, and the greater insight it m ay have given the juvenile court into his m aturity and sophistication, the state habeas court was not unreasonable in considering how that evidence would have fit into the context of the evidence presented. While Matthews now relies on lay testim ony about his em otional state, the State called law-enforcem ent witnesses and juvenile-justice experts who provided detailed testim ony about his sophistication and m aturity. The nature of the offense and Matthews’s history weighed in heavily as the juvenile court deliberated whether adult certification would protect the public. Despite his status as a juvenile, Matthews faced charges involving three m urders, allegedly com mitted in a 44 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 45 of 54 particularly brutal fashion. The juvenile court considered the fact that Matthews’s age had nearly removed him from its original jurisdiction. In the full context of what was presented at trial and that which was developed afterwards, the state habeas court’s finding of no Strickland prejudice was not contrary to, or an unreasonable application of, federal law. 3. Prior Hearings (Claim Four) Finally, Matthews com plains that trial counsel erred by letting the juvenile court “find probable cause and take notice of prior testim ony and findings from hearings for which there was no record.” (Dkt. 7, at 66). In the juvenile-waiver hearing, the State twice asked witnesses to discuss previous hearings for which no record existed. J .R.R. Vol. 3 at 45, 51. The juvenile-court judge had presided over the two prior detention hearings discussed by the State’s witnesses. That experience with Matthews’s case allowed the juvenile court to take judicial notice of the prior hearings. The respondent provides state law for the proposition that a “trial court is presum ed to judicially know what has previously taken place in the case tried before it, the parties are not required to prove facts that a trial court judicially knows.” In re J.J.C., 30 2 S.W.3d 436, 446 (Tex. App.-Houston [14th Dist.] 20 0 9, pet. denied) (quotation and alteration om itted). Matthews further fails to show any prejudice from the juvenile court recognizing what he had previously done in this case. Thus, Matthews has not shown that the state habeas court was unreasonable in finding that he had not proven that “defense counsel 45 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 46 of 54 was ineffective during the juvenile certification hearing by failing to object to the court taking judicial notice of its prior findings and testimony regarding probable cause from prior detention hearings.” State Habeas Record at 191. 4. Cum ulative Error Matthews alleges that the cum ulative effect of the alleged errors by trial counsel merits habeas relief. The state habeas court held that, “[a]fter reviewing [Matthews’s] claim s of ineffective assistance, the Court concludes that they are without merit, either as individual claims or cum ulatively, and that [Matthews] has failed to prove by a preponderance of the evidence his trial counsel perform ed deficiently either during the juvenile certification proceeding or ensuing trial.” State Habeas Record at 214. As discussed with regard to each individual point above, Matthews has not shown that the state habeas court was unreasonable in adjudicating his individual Strickland argum ents. Because Matthews has failed to prove that his counsel was ineffective in any respect, “there is nothing to cumulate.” Villaneuva v. Stephens, 555 F. App’x 30 0 , 30 8 (5th Cir. 20 14). Im portantly, the court has reviewed the whole of Matthews’s allegations and the entirety of the juvenile-certification process. While Matthews has shown that other attorneys m ay have approached the hearing differently, he has not shown a reasonable probability of a different result. Matthews had nearly aged out of the juvenile-court process when the court cam e to consider his transfer. The court had before it sufficient probable cause showing that Matthews had com m itted the 46 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 47 of 54 m urders. The court heard testim ony about his m aturity and sophistication from m ore than one source. The State em phasized Matthews’s poor behavioral history and, given his age and nature of the offense, near certainty that he would be soon transferred to TDCJ . And the juvenile court had to consider that Matthews had com mitted a brutal crim e which resulted in the loss of a young girl and their unborn children. With that context, Matthews’s allegations fall far short of proving actual prejudice. The state habeas court was not unreasonable in denying Matthews’s Strickland claims. II. Claim s Aris in g fro m Trial Matthews raises three claims involving the trial of his guilt, all of which he also raised on state habeas review. The court finds that Matthews has not shown that the state-court adjudication of those issues was contrary to, or an unreasonable application of, federal law. A. Fals e Evid e n ce o f Pre s u m ptive Blo o d Te s t ( Claim Eigh t) In an argum ent sim ilar to the one concerning the juvenile-waiver hearing, Matthews argues that the State presented false and m isleading evidence regarding presum ptive blood-test results. As in juvenile court, the prosecution adduced testim ony that DNA testing resulted in preliminarily positive results for various items, such as the clothing which Matthews eventually turned over to the police (in particular a shirt, socks, and blue jeans which he had washed and bleached). R.R. Vol. 10 , at 158. Matthews’s briefing gives the im pression that the State adduced 47 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 48 of 54 testim ony about only the prelim inary positive test results without giving the jury inform ation about additional testing. The State, however, presented the bulk of its DNA testim ony through Rachel Burch, a senior forensic analyst at the University of North Texas Center for Human Identification. Burch testified that confirm atory testing of som e items revealed that “it’s not blood or . . . it was blood but we just can’t confirm it.” R.R. Vol. 9, at 159-60 . Burch also described how the State had not retested som e item s that had preliminarily tested positive for blood. R.R. Vol. 9, at 160 -64. Burch also explained the victim could not “be excluded as the possible m ajor contributor of . . . mixed DNA that’s on [Matthews’s] right shoe,” R.R. Vol. 9, at 165, and “the contributor of [a] fem ale profile on the left shoe.” R.R. Vol. 9, at 177. On cross-exam ination, the defense elicited testim ony that confirm atory tests were either negative, inconclusive, or not perform ed at all. Tr. Vo. 10 , at 3233, 36. Matthews has not pointed to any allegedly false testim ony that the defense did not correct through Burch’s testim ony or cross-exam ination. See Long v. Pfister, 874 F.3d 544, 548 (7th Cir. 20 17) (“All N apue itself holds is that perjury known to the prosecution m ust be corrected before the jury retires.”). Given the whole of the State’s evidence, and placed in the context provide by crossexam ination, Matthews has not shown that the state court was unreasonable in finding that he had fail[ed] to show that any of the State's evidence com plained of in his application supporting m emoranda, taken as a whole, was in fact false or otherwise created a false im pression either during either the juvenile certification proceeding or subsequent district court trial. 48 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 49 of 54 The Court further concludes that [Matthews] has failed to dem onstrate that the introduction of any allegedly false evidence at his trial violated his due-process rights. State Habeas Record at 214. B. In e ffe ctive As s is tan ce at Trial ( Claim s N in e an d Te n ) Matthews raises two com plaints regarding his attorney’s representation during the trial of his guilt. First, Matthews contends that trial counsel should have challenged the admission of testim ony and evidence about the presum ptive blood tests (claim nine). Second, Matthews faults counsel for not objecting to testim ony about num erous extraneous acts (claim ten). The state habeas court rejected both claims on state habeas review. Matthews m ust show that decision was contrary to, or an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). 1. Presumptive Blood Tests The State used the presumptive blood results at trial m uch in the sam e way as it had in the juvenile-court waiver hearing. Matthews argues that trial counsel should have objected to the adm ission of the presum ptive blood-test results. The state habeas court found no deficient perform ance or resultant prejudice in this regard. In his state habeas affidavit, trial counsel explained: “In fact, it was trial strategy to allow the presum ptive tests. We argued that the lack of confirm atory blood tests was exculpatory.” State Habeas Record at 61. Trial counsel’s closing argument revealed its strategy: Trial counsel argued that the evidence 49 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 50 of 54 unquestionably “proves [Matthews] had sex with [the victim], that he was there,” but that was all it showed. R.R. Vol. 12 at 190 . Trial counsel used the presumptive test results to explain how Matthews initially becam e “the focus of everyone’s attention.” Then counsel went on to argue that attention was unfounded: But what they did do was to test to see if they can conclude it was what? Hum an blood. And what did all of those tests—every single one of them com e back was? It was not hum an blood. Okay? Now they can m ake all the excuses they want and justifications but what I know is the witness sat in the stand, looked you in the eye and I asked the question: Did any of them com e back as hum an blood? And her response was: We found no hum an blood on any of these item s. R.R. Vol. 12, at 192, 196. Instead of proving his guilt, trial counsel argued that all the DNA evidence could prove, when considered objectively, was “that they were together that day at som e point. . . . I think I even asked one of the forensic scientists, did this evidence show that he com mitted a m urder. No, it doesn't. . . . It looked good. But it didn't prove a m urder. It just proved they were there. It just proved they had sex.” R.R. Vol. 12, at 20 4. Trial counsel assessed the inform ation and m ade an inform ed, strategic decision not to object to testim ony about the presum ptive blood tests. Trial counsel’s strategy allowed jurors to understand why the police arrested Matthews, but still allowed them to arrive at a not-guilty verdict. Even though trial counsel’s strategy was not successful, Strickland jurisprudence gives wide latitude in m aking tactical decisions. See Strickland, 466 U.S. at 689; see also Pape v. Thaler, 645 F.3d 281, 291 (5th Cir. 20 11) (“[A] ‘conscious and inform ed decision on trial tactics 50 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 51 of 54 and strategy cannot be the basis of constitutionally ineffective assistance of counsel unless it is so ill chosen that it perm eates the entire trial with obvious unfairness.’” (quoting Richards v. Quarterm an, 566 F.3d 553, 564 (5th Cir. 20 0 9))). The Suprem e Court has previously held “[t]o support a defense argum ent that the prosecution has not proved its case it som etimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.” Harrington v. Richter, 562 U.S. 86, 10 9 (20 11). The state habeas court was not unreasonable in finding that trial counsel employed a reasonable trial strategy in his approach to the presum ptive positive blood-test results. 2. Bad Acts Matthews claims that trial counsel provided ineffective representation in failing to object to extraneous bad acts for which the State had allegedly not given requisite notice under Rule 40 4 of the Texas Rules of Evidence. Rule 40 4(b) allows evidence of “other crim es, wrongs or acts” to be adm itted for purposes such as “proof of m otive, opportunity, intent, preparation, plan, knowledge, identity, or absence of m istake or accident,” and if “reasonable notice is given in advance of trial of intent to introduce such evidence.” The state habeas court summ arized the alleged bad acts presented by the prosecution as follows: (A) evidence that [Matthews] sent num erous text m essages to the victim discussing ways to cause a m iscarriage, procuring an abortion, punching the victim in the stom ach, threatening other students and threatening the victim ; (B) texting and pursuing other girls while the victim was pregnant with [Matthews’s] children; (C) not being affectionate with the victim; (D) paying others to take him to the 51 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 52 of 54 victim ’s hom e in order to have sex; (E) going to the victim ’s house without her parents’ knowledge; (F) conducting Google searches about getting abortions and causing m iscarriages; (G) lying to other girls; (H) talking about killing him self; (I) requesting others to convince the victim to have an abortion; (J ) m aking threats to other students; and (K) [Matthews] yelling at his parents. State Habeas Record at 192. In his state habeas affidavit, trial counsel responded to Matthews’s com plaint that he should have objected to the testim ony about “bad acts”: “The ‘bad acts’ . . . were all m ade known to m e. Truthfully, I did not consider them bad acts for the purposes of 40 4(b). These were not extraneous acts unrelated to the case. These were just facts—none of which were a surprise. It was trial strategy not to m ake a bunch of frivolous objections but rather stay focused on the defense that som eone else did the crime.” State Habeas Record at 61. Matthews has not shown that trial counsel was incorrect in his understanding of Texas evidentiary law. In Texas, “[t]he jury is entitled to know all relevant surrounding facts and circumstances of the charged offense.” Devoe v. State, 354 S.W.3d 457, 459 (Tex. Crim . App. 20 11). Trial counsel admitted that he had received notice of the acts but did not believe that the evidentiary rules barred their admission or use. Rule 40 4(b) does not apply to “sam e transaction contextual evidence,” that is, to evidence that “im parts to the trier of fact inform ation essential to understanding the context and circum stances of events” that are “blended or interwoven.” See Cam acho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). 52 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 53 of 54 The contextual evidence “is adm issible, not for the purpose of showing character conform ity, but to illum inate the nature of the crime alleged.” See id. Additionally, such extraneous inform ation is adm issible as evidence of identity when identity is at issue. See Moore v. State, 70 0 S.W.2d 193, 20 1 (Tex. Crim. App. 1985). Thus, the alleged “bad acts” provided necessary context to the crime without am ounting to separate offenses. The state habeas court found that Matthews had not shown deficient perform ance or actual prejudice from trial counsel’s handling of the allegedly false evidence. State Habeas Record at 214. Deferring to the trial court’s findings, the state habeas court was not unreasonable in its application of Strickland. Counsel m ade a strategic decision not to object based on Texas law. Matthews fails to overcom e the strong presum ption that counsel’s conduct fell within the wide range of reasonable professional assistance. Nor has he shown a reasonable probability that the trial counsel would have sustained any objection based on Rule 40 4(b). The court denies this claim. CERTIFICATE OF APPEALABILITY Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate of appealability will not issue unless the petitioner m akes “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a petitioner to dem onstrate “‘that reasonable 53 Case 3:19-cv-00192 Document 29 Filed on 10/26/20 in TXSD Page 54 of 54 jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong.’” Tennard v. Dretke, 542 U.S. 274, 282 (20 0 4) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 )). After careful review of the petitioner’s claims and the applicable law, the court concludes that reasonable jurists would not find its ruling debatable or wrong. The court will not certify any issue for appellate consideration. CON CLU SION AN D ORD ER The court orders as follows: 1. The m otion for summ ary judgm ent (Dkt. 15) is granted. 2. The federal habeas corpus petition (Dkt. 1) is denied. 3. No certificate of appealability will issue. The clerk will provide a copy of this order to the parties of record. SIGNED on Galveston Island on _ _ October _ _ _ _ _ _26th _ _ _ _ _ _ _ _ _ _ _ _ , 20 20 . __________________________________ J EFFREY VINCENT BROWN UNITED STATES DISTRICT J UDGE 54

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