McCarty v. Davis, No. 4:2018cv00711 - Document 35 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 18 MOTION for Summary Judgment with Brief in Support, denying 29 MOTION for Leave to File Affidavit, denying 30 MOTION for Summary Judgment MOTION for Leave to File, granting 31 MOTION fo r Leave to File Motion for Judicial Notice with Final Supplement Brief in Support, granting 32 MOTION for Leave to File To Add, denying 33 MOTION for Leave to File To Considered. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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McCarty v. Davis Doc. 35 United States District Court Southern District of Texas ENTERED January 23, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JAMES LAWRENCE McCARTY, TDCJ #2045586, § § § § § § § § § § § § § Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. David J. Bradley, Clerk CIVIL ACTION NO. H-18-0711 MEMORANDUM OPINION AND ORDER James Lawrence McCarty has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") Entry No. 1), seeking relief under 28 U.S.C. § (Docket 2254 from a murder conviction entered against him in Harris County. Pending before the court is Respondent Lorie Davis's Motion for Summary Judgment With Brief in Support ("Respondent's MSJ") (Docket Entry No. 18). In response McCarty has filed his own Motion for Summary Judgment, Motion for Leave of Court, and Demand for Jury Trial, With Brief in Support ("Petitioner's MSJ") (Docket Entry No. 30). McCarty has also filed more than one motion to supplement the pleadings with additional exhibits, authority, argument, and a new claim (Docket Entry Nos. pleadings, 29, 31, 32, 33). After the state court record, considering all of the and the applicable law, the Dockets.Justia.com court will grant Respondent's MSJ and will dismiss this action for the reasons explained below. I. Background A grand jury in Harris County, Texas, returned an indictment against McCarty in Case No. 1431305, charging him with causing the death of firearm. 1 Cyril Jones by shooting her with a On September 8, 2015, deadly weapon, a McCarty entered a plea of nolo contendere or no contest to the murder charges against him without an agreed recommendation from the State as to punishment, which would be determined by the trial court following a presentence investigation ("PSI") . 2 After admonishing McCarty orally and in writing of the consequences of his plea, the trial court found him guilty and deferred making any further findings Probation officers with the Harris subject to the County Community Supervision and Corrections Department conducted an investigation and prepared a PSI Report regarding the incident that resulted in 1 Indictment, Docket Entry No. 19-19, p. 11. For purposes of identification, all page numbers refer to the pagination imprinted by the court's electronic filing system, CM/ECF. 2 Waiver of Constitutional Rights [and] Agreement to Stipulate ("Waiver and Agreement"), Docket Entry No. 19-19, pp. 57-58; Admonishments, Docket Entry No. 19-19, pp. 59-62; Court Reporter's Record, vol. 2, Plea to a PSI Hearing ("Plea Hearing"), Docket Entry No. 20-1. 3 Admonishments, Docket Entry No. 19-19, pp. 59-62; Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1. -2- the murder charges against McCarty. 4 According to the PSI Report McCarty was a passenger in a white van driven by the victim's husband, Willie Jones, Valero gas station when they stopped to buy some beer at a in Houston, Texas, on June 7, 2014. 5 The victim, who was seated in the front passenger seat, remained in the van along with an acquaintance named Myra Robinson. 6 When McCarty was unable to purchase beer because his credit card was declined, he became agitated and left the store. 7 McCarty then pulled out a . 25 caliber automatic pistol and had a brief exchange with the victim before he shot her in the head, seated in the van. 8 killing her as she was When a bystander (Chance Perkins) attempted to intervene McCarty fired at him three times until someone else helped take McCarty to the ground. 9 McCarty told investigators that he "really [didn't] know what happened," and did not recall the shooting or how he ended up in police custody. 10 McCarty denied being under the influence of drugs or alcohol on the day of the offense, but claimed that he had 4 PSI Report, Docket Entry No. 20-3, pp. 5-33. 5 Id. at 6. 6 Id. 7 Id. 8 Id. at 6-7. 9 Id. at 7-8. lOid. at 8. -3- previously ingested some PCP or synthetic marijuana ("K-2") dipped in embalming fluid while partying with two women he did not know on the night before. 11 The offense was captured on the gas station's surveillance video camera, which depicts McCarty leaving the store and approaching the victim while she was seated in the front passenger side of the van with the window rolled down. 12 The video shows that McCarty had words with the victim before firing a single shot at close range, striking her in the head, then being apprehended by Perkins, who happened to be passing by at the time. 13 At a sentencing hearing in the 230th District Court for Harris County, held on January 20, 2016, Perkins testified that he saw McCarty shoot and kill the victim as she sat in the front passenger seat of the van. 14 Iraq and Afghanistan, A combat veteran who served in both Perkins recounted how McCarty shot at him three times as he struggled to take McCarty to the ground and that, in Perkins' opinion, McCarty was definitely trying to kill him during that altercation. 15 11 Id. at 8-9, 10-11, 17. 12 Docket Entry 14 Presentence Investigation Hearing"), Docket Entry Id. at 9 (summarizing the video) ; Video CD, No. 21 (DA28 File 20140607184430 at 18:48:10-35) Court Reporter's Record, vol. 3, Sentencing Hearing ("PSI Sentencing No. 20-2, pp. 11-12, 15-16. 15 Id. at 13-14, 16. -4- Willie Jones testified that he believed McCarty had smoked some PCP on the day the incident occurred because he had seen McCarty under the influence previously. 16 Jones testified that McCarty was not acting normally before they arrived at the gas station and that McCarty became agitated when his credit card was declined by the cashier. 17 While Jones was in the store attempting to cash in some lottery tickets, he saw McCarty start "flipping out" near the van. 18 Jones then saw McCarty shoot his wife, killing her. 19 In support of provided numerous the PSI Report McCarty's character-reference letters defense from counsel friends and family members who described McCarty's work ethic, his reputation as a kind person, and his religious faith. 20 Defense counsel also called several character witnesses at the sentencing hearing who testified that McCarty's actions on the day of the offense were totally out of character. 21 McCarty testified on his own behalf during the sentencing proceeding and denied doing any drugs the day of the offense. 22 16 Id. at 19, 28. 17 Id. at 22-27. 18 Id. at 27-31. 19 Id. at 31-34. 20 Attachment 'A' - Defendants' Character Reference Letters to the PSI Report, Docket Entry No. 20-3, pp. 21-33. 21 Court Reporter's Record, vol. Docket Entry No. 20-2, pp. 45-62. 22 Id. at 64. -5- 3, PSI Sentencing Hearing, When pressed to explain his behavior, McCarty reiterated the statement given previously to investigators by admitting that he had smoked some K-2 cigarettes that had been dipped in embalming fluid by two women he did not know on the evening before the offense occurred. 23 After considering the PSI Report, the exhibits, and the testimony at the sentencing hearing, the trial court sentenced him to 55 years in prison. 24 Although McCarty filed a notice of appeal from the judgment, his appointed counsel reviewed the record and filed a brief pursuant to Anders v. California, 87 S. Ct. 1396 (1967) (an "Anders brief") , appeal certifying without merit. 25 appeal was that in counsel's opinion the The intermediate court of appeals agreed that the "wholly frivolous and without merit" affirmed the conviction in an unpublished opinion. State, No. 14-16-00085-CR, 2016 WL 6238406, Houston [14th Dist.] Oct. 25, 2016) . 26 of Criminal was Appeals denied at *1 and summarily See McCarty v. (Tex. App.- Thereafter, the Texas Court McCarty's pro se petition for discretionary review. 27 23 Id. at 69-71. Id. at 88i Judgment of Conviction by Court - Waiver of Jury Trial, Docket Entry No. 19-19, p. 75. 24 25 Brief For Appellant, Docket Entry No. 19-8. 26 Memorandum Opinion, Docket Entry No. 19-3. 27 Electronic Record, Docket Entry No. 19-18. -6- McCarty challenged his conviction by filing an Application for a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under [Texas] Code of Criminal ("Application") with the trial court. 28 Procedure, Article 11.07 In his Application, McCarty raised the following claims: 1. His trial counsel was deficient for coercing his plea and a litany of other reasons. 2. The trial court abused its discretion by holding a hearing on the PSI Report, which amounted to a bench trial. 3. The trial court violated his right to due process at the sentencing hearing by denying him the right to cross-examine witnesses and admitting his statements in violation of the privilege against self-incrimination. 4. The evidence was factually and legally insufficient to support a finding of guilt. 29 The trial court, which also presided over the plea and sentencing proceedings, entered findings of fact and concluded that McCarty was not entitled to relief. 30 The Texas Court of Criminal Appeals agreed and denied relief without a written order on March 7, 2018, adopting findings made by the trial court without a hearing. 31 28 Application, Docket Entry No. 20-14, pp. 5-21. 29 See id. at 10-18. 30 State's Proposed Findings of Fact, Conclusions of Law, and Order ("Findings and Conclusions"), Docket Entry No. 20-14, pp. 7480. 31 Action Taken on Application No. WR-87,220-03, Docket Entry No. 20-10. McCarty filed a previous state habeas application, which the Texas Court of Criminal Appeals dismissed on August 16, (continued ... ) -7- McCarty now contends that he is entitled to federal habeas relief from his conviction under 28 U.S.C. 2254(d). § McCarty's Petition, which the court has allowed him to supplement, raises the following claims that have been re-ordered by the court for purposes of analysis: 1. The state courts "failed to rule correctly" on the claims he presented on collateral review. 2. He was denied effective assistance of counsel because his trial attorney failed to adequately investigate or raise defenses and coerced his plea without mounting any defense. 3. He was denied effective assistance of counsel on direct appeal when his attorney filed an Anders brief. 4. His defense counsel allowed the trial court to hold an illegal PSI hearing for the purpose of securing an "involuntary plea." 5. The trial court erred by holding a PSI hearing. 6. His statements were admitted into evidence at the PSI hearing in violation of the Fifth Amendment privilege against self-incrimination. 7. He was denied the right to cross-examine witnesses at the PSI hearing. 8. The trial court bench trial. 9. The evidence was factually and legally insufficient to support a finding of guilt. 32 treated the PSI hearing like a continued) 2017, for failure to comply with Tex. R. App. P. 73.1. See Action Taken on Application No. WR-87,220-01, Docket Entry No. 20-5. McCarty also filed a motion for leave to file a writ of mandamus, which the Texas Court of Criminal Appeals denied on that same day. See Action Taken on Application No. WR-87,220-02. 31 ( ••• 32 Petition, Docket Entry No. 1, pp. 6-7, 18-26; Motion for Court's Leave to Amend Writ of H/C Title 28 U.S.C. § 2254, Docket (continued ... ) -8- The respondent moves for summary judgment, arguing that Claims Five through Eight are barred by the doctrine of procedural default. 33 Noting that McCarty's plea was voluntarily and knowingly made, the respondent argues that his remaining claims are either waived or without merit. 34 After the respondent moved for summary judgment, McCarty filed a series of motions in response. McCarty filed Petitioner's MSJ, which argues primarily that he is entitled to relief because he was denied effective assistance by his trial and appellate counsel. 35 McCarty filed Petitioner's Motion for Leave of Court, to Submit an Affidavit by Ruby Robinson, Support and Medical Records, ("Motion to Supplement the Record") obtain and submit additional evidence. 36 filed a Motion Final [for] Supplement with Brief in that seeks leave to In addition, McCarty has Leave to File Motion for Judicial Notice, with Brief in Support ("Motion for Judicial 32 ( • • • continued) Entry No. 8, pp. 1-3, which the court construed as a supplement to the petition, Docket Entry No. 9. Although many of McCarty's allegations are difficult to decipher, the court has reviewed all of his pro se pleadings under a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 92 S. Ct. 594, 596 (1972) (per curiam); see also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) ("A document filed pro se is 'to be liberally construed[.]'") (quoting Estelle v. Gamble, 97 S. Ct. 285, 292 (1976)) . 33 Respondent's MSJ, Docket Entry No. 18, pp. 6-7. 34 Id. at 7-22. 35 Petitioner's MSJ, Docket Entry No. 30. 36 Motion to Supplement the Record, Docket Entry No. 29. -9- Notice") , Argument and a Motion Due to [for] Newly Leave to File to Add Supplemental Discovered U.S. Supreme ("Motion to Provide Supplemental Argument"), Court Decision asking the court to take note of a recent Supreme Court case, Wilson v. Sellers, 138 S. Ct. 1188 (2018), and to consider additional argument based on that decision. 37 McCarty has also filed a Motion for Leave to Consider Claim of Incorrect Date (Birth), on Indictment ("Motion to Add New Claim") , challenging a indictment. 38 deficiency in his McCarty's motions will be addressed below after the court has addressed Respondent's MSJ under the governing standard of review. II. The federal petitioner to habeas first Standard of Review corpus present standard his claims of review in state requires court and exhaust all state court remedies through proper adjudication. 28 u.s.c. § 2254(b). a to See To satisfy the exhaustion requirement the petitioner must present his claims to the highest state court in a procedurally proper manner so that the state court is given a fair opportunity to consider and pass upon challenges to a conviction before those issues come to federal court for habeas corpus review. See, e.g., O'Sullivan v. Boerckel, 119 S. Ct. 1728, 1732 (1999) (explaining that comity dictates that state courts should have the Motion for Judicial Notice, Docket Entry No. 31; Motion to Provide Supplemental Argument, Docket Entry No. 32. 37 38 Motion to Add New Claim, Docket Entry No. 33. -10- first opportunity to review a relief) . When a claim and provide any necessary state court declines to address a prisoner's federal claims because he has failed to meet a state procedural requirement, or state remedies are otherwise rendered unavailable by a prisoner's own procedural default, federal courts are barred from reviewing the claims. See Coleman v. Thompson, 111 S. Ct. 2546 (1991); Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). To the extent that the petitioner's claims were adjudicated on the merits in state court, his claims are subject to review under the Antiterrorism ( "AEDPA"), and Effective Death codified at 28 U.S. C. Penalty of 1996 Under the AEDPA a 2254 (d) . § Act federal habeas corpus court may not grant relief unless the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, Federal law, as United States[.]" determined 28 U.S.C. § by the 2254(d) (1) clearly established Supreme Court of the If a claim presents a question of fact, a petitioner cannot obtain federal habeas relief unless he shows that the state court's denial of relief "was based on an unreasonable determination of the facts in light of evidence presented in the State court proceeding." the 28 U.S.C. § 2254 (d) (2). "'A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially -11- indistinguishable facts.'n 215 (5th Cir. 2015) Matamoros v. Stephens, (citations omitted) . To 783 F.3d 212, constitute an "unreasonable application ofn clearly established federal law, a state court's holding "must be objectively unreasonable, not merely wrong; even clear error will not suffice.n Woods v. Donald, 135 S. Woodall, Ct. 1372, 1376 (2015) 1697, 1702 (2014)). (quoting White v. 134 S. Ct. This highly deferential standard "was meant to bar relitigation of claims already rejected in state proceedings and to preserve federal habeas review as "a 'guard against extreme malfunctions in the for substitute state ordinary criminal error justice correction systems,' through Harrington v. Richter, 131 S. Ct. 770, 786 (2011) v. Virginia, concurring)) . 99 S. Ct. 2781, 2796, n.5 not a appeal.n (quoting Jackson (1979) (Stevens, J., "To satisfy this high bar, a habeas petitioner is required 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 fairminded disagreement.'n Woods, 135 S. Ct. at 1376 (quoting Richter, 131 S. Ct. at 786-87) A state court's factual determinations are also entitled to deference on federal habeas corpus review. "presumed findings § to with 2254 (e) (1). be correctn "clear and unless Findings of fact are the petitioner convincing evidence.n rebuts 28 those u.s.c. This presumption of correctness extends not only to express factual findings, but also to implicit or "'unarticulated -12- findings which are necessary to the state court's conclusions of mixed law and fact.'" 2018) Murphy v. Davis, 901 F.3d 578, 597 (5th Cir. (quoting Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001)); see also Garcia v. Quarterman, Cir. 2006) 2005); 454 F.3d 441, 444-45 (5th (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)) A federal habeas corpus court "may not characterize these state-court factual determinations as unreasonable 'merely because [it] would have reached a different conclusion Brumfield v. Cain, 135 S. Ct. 2269, Allen, 130 requires S. that Ct. [a 841, 849 federal substantial deference." 2277 (2010)). court] the first (2015) (quoting Wood v. "Instead, accord the instance.'" state 2254 (d) (2) § trial court Id. III. A. in Discussion Claims Five Through Eight are Procedurally Barred In Claims Five through Eight McCarty contends that the trial court erred by holding a PSI hearing or bench trial after McCarty waived his right to a trial, and that the trial court violated his right to cross-examine witnesses and his privilege against selfincrimination during the proceeding. 39 for the first time in his McCarty raised these issues state habeas Application, reviewing court declined to consider them. 39 40 The where the state habeas Petition, Docket Entry No. 1, pp. 20, 22. 4 °Findings and Conclusions, Docket Entry No. 20-14, Finding of Fact No. 22, p. 76. -13- corpus court found that these issues were record-based claims that should have been raised on direct appeal and were, therefore, "not cognizable" on collateral review. 41 The Texas Court of Criminal Appeals adopted these findings when it denied relief without a writ ten order. 42 Under Texas law habeas corpus review is not available for matters that could have and "should have been raised on appeal." Ex parte Carter, 521 (citation omitted) S.W.3d 344, 347 Under this rule, (Tex. Crim. App. 2017) "' [e] ven a constitutional claim is forfeited if the applicant had the opportunity to raise the issue on appeal. This is because the writ of habeas corpus is an extraordinary remedy that is available only when there is no other adequate remedy at law.'" (quoting Ex parte Townsend, Carter, 137 S.W.3d 79, 521 81 S.W.3d at (Tex. 347-48 Crim. App. 2004)) . The Fifth Circuit has recognized that this procedural rule, which requires that a petitioner raise any claims based on the trial record on direct appeal before raising them in a state habeas petition, is an "'adequate state ground capable of barring federal habeas review.'" Cir. 2007) 2004)). Scheanette v. Quarterman, 482 F.3d 815, 827 (5th (quoting Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. Because the state habeas corpus court expressly based its dismissal on a state procedural rule found adequate to bar federal 41 Id. 42 Action Taken on Application No. WR-87,220-03, Docket Entry No. 20-10. -14- review, McCarty has procedurally defaulted the issues raised in Claims Five through Eight. See Rocha v. Thaler, 626 F.3d 815, 820- 21 (5th Cir. 2010). If a petitioner has committed a procedural default, habeas corpus review is available only if he federal can demonstrate: (1) "cause for the default and actual prejudice as a result of the alleged violation of federal law," or (2) that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 111 S. Ct. 2546, 2565 not demonstrate cause for his default likewise fails (1991). McCarty does in this case. 43 McCarty to establish prejudice or that his default will result in a fundamental miscarriage of justice because he has not provided the court with evidence that would support a "colorable Kuhlmann v. showing of factual innocence." 2616, see ,?.lso Schlup v. Delo, 2627 (1995) habeas (1986); Wilson, 106 S. 115 S. Ct. 851, Ct. 861 (describing actual innocence as a "'gateway through which a petitioner constitutional omitted) . must claim pass to considered Accordingly, the court have on the his otherwise merits'") concludes that barred (citation Claims Five through Eight are procedurally barred. 43 In Claim Three, McCarty contends that he was denied effective assistance of counsel on direct appeal. Ineffective assistance of counsel can constitute cause for purposes of excusing a procedural default. See Edwards v. Carpenter, 120 S. Ct. 1587, 1591 (2000). "Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution." Id. For reasons discussed in more detail below, McCarty has not shown that he was denied effective assistance of counsel on appeal. Accordingly, this allegation cannot qualify as cause and does not overcome the procedural bar. -15- B. Alternatively, Claims Five Through Eight Are Without Merit Even if not procedurally barred, McCarty does not demonstrate that his defaulted claims have merit. Although McCarty contends in Claims Five and Eight that the trial court erred by holding a PSI hearing or bench trial, the record shows that McCarty entered a plea of no contest to the charges against him without an agreed recommendation from the State as to punishment, decided pursuant to a PSI. 44 which would be The trial court explained what this meant to McCarty during the plea proceeding, advising McCarty that the court would assess his sentence after reading the PSI Report and holding a hearing. 45 McCarty acknowledged that he understood and indicated that he had discussed the process with his defense counsel, whom he described as "very thorough." 46 The trial court further explained that because McCarty had entered a plea of no contest the State would be required to present evidence of his guilt. 47 McCarty again acknowledged that he understood. 48 Under Texas law "[a] plea of nolo contendere or no contest has the same legal effect as a plea of guilty except that such plea may not be used as an admission in any civil suit." Flores-Alonzo v. 44 Waiver and Agreement, Docket Entry No. 19-19, pp. 57-58; Admonishments, Docket Entry No. 19-19, pp. 59-62; Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1. 45 Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1, p. 5. 46 Id. at 5-6. -16- State, 460 S.W.3d 197, 201 (citing Tex. Code Crim. (Tex. App. -Texarkana 2015, no pet.) Proc. art. 27.02(5)). The State is required to substantiate a no-contest plea by presenting evidence that "embraces each essential element of the offense charged," but is not required to prove guilt beyond a reasonable doubt. at 203 (citations omitted). See id. Because the State was required to present proof of guilt to substantiate the plea, McCarty has not shown that the trial court erred by holding a PSI hearing that featured testimony from witnesses and evidence. To the extent that denied the opportunity r~cCarty to asserts in Claim Seven that he was cross-examine witnesses at the PSI hearing, he expressly waived that right both in writing and in open court when he entered his plea. 49 The trial court addressed the written waiver during the plea hearing, confirming that McCarty was giving up the right to confront and cross-examine witnesses by pleading no contest, and McCarty indicated that he understood. 50 The record further reflects that McCarty's defense counsel had an opportunity to cross-examine each of testified at the PSI hearing. 51 the State's witnesses who McCarty does not propose any other 49 Admonishments, Docket Entry No. 19-19, p. 62 ("I waive and give up my right to a jury in this case and my right to require the appearance, confrontation and cross-examination of the witnesses."); Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1, pp. 6-8. 5 °Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1, pp. 6-8. 51 Court Reporter's Record, vol. 3, Docket Entry No. 20-2, pp. 14-17, 39-44. -17- PSI Sentencing Hearing, questions she could have asked or shown that it would have made a difference in the outcome. Based on this record/ McCarty does not show that his right to confront and cross-examine witnesses was violated. McCarty/ s assertion in Claim Six/ in which he claims that post-arrest statements that he made to law enforcement without the benefit of counsel were admitted at the PSI hearing in violation of the privilege against self-incrimination/ also lacks merit. McCarty agreed to have his sentence determined by the trial court following a PSI hearing when he pled no contest without an agreed recommendation as to punishment. 52 During his interview for the PSI McCarty provided little in the way of inculpatory information/ stating only that he did not remember the shooting because he had used synthetic marijuana possibly mixed with embalming fluid or PCP the day before the offense. 53 is no requirement that a Texas courts have held that "there defendant be warned of his right to refrain from self-incrimination prior to submitting to a routine/ authorized presentence investigation." 621 624 1 State/ 1983 - (Tex. App. 652 S.W.2d 519 Tyler 1996 1 519-20 Garcia v. State/ 930 S.W.2d no pet.) 1 (Tex. App. - (citing Edwards v. Houston pet. ref d); Trimmer v. State/ 651 S.W.2d 904 906 (Tex. App. 1 1 Houston 52 53 [1st Dist.] 1983 1 pet. ref d); 1 1 Stewart v. Waiver and Agreement/ Docket Entry No. 19-19 PSI Report/ Docket Entry No. 20-3 -18- 1 pp. 8-9 1 [1st Dist.] 1 State/ pp. 57-58. 10-11. 675 S. W. 2d 524, 525 (Tex. App. Houston [14th Dist.] 1983, pet. ref' d)); see also United States v. Woods, 907 F.2d 1540, 1543 (5th Cir. 1990) (holding that a probation officer's interview of a defendant without counsel during a presentence investigation did not violate the defendant's Fifth or Sixth Amendment rights). The record shows that McCarty repeated the substance of his post-arrest statements on the witness stand at the PSI hearing when he testified on his own behalf. 54 A defendant waives the privilege against self-incrimination with respect to testimony given when he voluntarily testifies. 1307, 1311-12 (1999) See Mitchell v. United States, 119 S. Ct. (observing that a witness may not testify voluntarily and then invoke the privilege against self-incrimination when questioned about the details); Harrison v. United States, 88 S. Ct. 2008, 2010 (1968) ("A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives[.]"); Chavez v. State, 508 S.W.2d 384, 386 (Tex. Crim. App. 1974) (''[A]n accused, taking the stand on his own behalf, privilege" waives the (citations omitted); Birdsong v. App.- Austin 2002, no pet.) against State, self-incrimination.) 82 S.W.3d 538, 543 (Tex. (citing Brumfield v. State, 445 S.W.2d 732, 735 (Tex. Crim. App. 1969)). McCarty does not cite authority or provide any argument showing that he is entitled to relief on the allegations he makes 54 Court Reporter's Record, vol. Docket Entry No. 20-2, pp. 63-81. -19- 3, PSI Sentencing Hearing, in Claims Five through Eight. emphasized that "mere The Fifth Circuit has repeatedly conclusory allegations constitutional issue in a habeas proceeding." F.2d 1008, 1012 (5th Cir. 1983) 796, 798 (5th Cir. 1982) do not raise a Ross v. Estelle, 694 (citing Schlang v. Heard, 691 F.2d (collecting cases)). For these additional reasons, McCarty is not entitled to relief on Claims Five through Eight. C. McCarty's Plea was Voluntarily and Knowingly Made (Claim Four) McCarty alleges in Claim Four that his plea of nolo contendere was involuntarily or unknowingly made because the trial court held a hearing on the PSI although McCarty did not agree to a hearing. 55 The Fifth Circuit has observed that "because a plea of nolo the law contendere is treated as an admission of guilt, applicable to a guilty plea is also applicable to a plea of nolo contendere." 1990) Carter v. Collins, 918 F.2d 1198, 1200 n.1 (5th Cir. (citing Hudson v. United States, 47 S. Ct. 127, 129 (1926) and Norman v. McCotter, 765 F.2d 504, 509-11 (5th Cir 1985)). It is well established that "[a] guilty plea will be upheld on habeas review if entered into knowingly, voluntarily, and intelligently." Montoya v. Johnson, 226 F.3d 399, 404 Bradshaw v. Stumpf, 125 S. Ct. 2398, (5th Cir. 2405 2000); (2005) see also ("A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, 55 knowingly, and intelligently, Petition, Docket Entry No. 1, p. 7. -20- 'with sufficient awareness of the relevant circumstances and likely consequences. '") (quoting Brady v. United States, 90S. Ct. 1463, 1469 (1970)). McCarty's claim was denied on state habeas corpus review, where the trial court pointed to documents in the record and found that McCarty was properly admonished orally and in writing of the consequences of his plea. 56 Because McCarty was properly admonished, his plea was presumed to have been voluntarily made as a matter of law. 57 The state habeas corpus court found that McCarty failed to overcome that presumption because he did not meet his burden to plead and prove facts showing that his plea was rendered involuntarily. 58 The state habeas corpus court concluded, therefore, that McCarty was not entitled to habeas relief on this claim. 59 McCarty has not presented any evidence to rebut the findings of fact made by the state habeas corpus court, which are presumed correct on federal review. See 28 presumption of correctness found in U.S.C. § § 2254 (e) (1). 2254 (e) (1) The is "especially strong" where, as here, "the state habeas court and the trial court are one in the same." )'1ays v. Stephens, 757 F.3d 211, 214 (5th 56 Findings and Conclusions, Docket Entry No. 20-14, Finding of Fact No. 12, p. 75. 57 Id. at 76, Finding of Fact No. 13 (citing Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004)) 58 Id. at 7 8, Conclusions of Law Nos. 6, 7, 8, and 9 ( citations omitted) . 59 Id., Conclusion of Law No. 11. -21- Cir. 2014) 2000)) i (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. Boyle v. Johnson, 93 F. 3d 180, 186 (5th Cir. 1996) (citing May v. Collins, 955 F.2d 299, 314 (5th Cir. 1992)). In addition, the state habeas corpus court's supported by official documents in the record, findings are which include a waiver form signed by McCarty indicating that he intended to enter a plea of nolo contendere without an agreed recommendation as to punishment, which would be determined investigation. 60 The detailed admonishments, writ ten waiver form in is after a accompanied which presentence by McCarty a set of specifically acknowledged that he understood the consequences of his plea and assured the trial court that it was "freely and voluntarily made." 61 Both of these forms are executed by McCarty, defense counsel, the prosecutor, and the trial court. 62 The record further confirms that the trial court discussed the plea, the waiver form, and related admonishments with McCarty, who acknowledged in open court that he understood the consequences of his decision to plead no contest. 63 McCarty argues that his signature and the signature on the written admonishment form were trial court's "forged. " 64 60 Waiver and Agreement, Docket Entry No. 19-19, pp. 57-58. 61 Admonishments, Docket Entry No. 19-19, p. 62. 62 Waiver and Agreement, Docket Entry No. Admonishments, Docket Entry No. 19-19, p. 62. 19-19, p. He 58i 63 Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1, pp. 3-10. 64 Petition, Docket Entry No. 1, p. 7i Petitioner's MSJ, Docket Entry No. 30, p. 6. -22- provides no evidence in support otherwise supported by the record. of this claim, which is not Official court records, such as the waiver form and written admonishments executed by McCarty, defense counsel, the prosecutor, and the trial court, "are entitled to a presumption of regularity and are accorded great evidentiary weight" 1079, on habeas corpu:3 review. 1081-82 (5th Cir. 1985) Hobbs v. (citations Blackburn, omitted). 752 F. 2d Likewise, "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 97 S. Ct. 1621, 1629 (1977); see also United States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002) ("Reviewing courts give great weight to the defendant's statements at the plea colloquy."); DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994) ("Although their attestations to voluntariness are not an absolute bar to raising this claim, Appellants face a heavy burden in proving that they are entitled to relief because such testimony in open court carries a strong presumption of verity."). Representations made by the defendant, his lawyer, and the prosecutor at a plea hearing, as well as the findings made by the trial judge accepting the plea, constitute a formidable barrier to any subsequent collateral attack. See Blackledge, 97 S. Ct. at 1629. McCarty's allegation that his signature was forged is also refuted by representations that McCarty made in open court during the plea hearing, where McCarty acknowledged that he signed the waiver form along with the admonishments and that he understood the -23- consequences of his plea. 65 McCarty's unsupported allegations are not sufficient to overcome the presumption of regularity accorded to the written waiver and admonishment forms or the substantial barrier imposed by the representations that he made in open court. See Blackledge, 97 S. Ct. at 1629 (stating that "[t]he subsequent presentation of conclusory allegations unsupported by specifics" is inadequate to challenge a defendant's sworn declaration made during a plea colloquy) . McCarty has not otherwise demonstrated that his plea was involuntarily or unknowingly made. Based on this record McCarty does not establish that the state habeas corpus court's decision to deny relief was unreasonable or contrary to clearly established law. Accordingly, McCarty is not entitled to relief on this claim. D. McCarty Was Not Denied Effective Assistance by Trial Counsel In Claim Two McCarty alleges that he was denied effective assistance of counsel because his trial attorney failed to "raise all affirmative defenses available" by investigating an "insanity defense" or seeking his civil commitment on the grounds that he had ingested "illicit" drugs laced with embalming fluid on the evening before the offense occurred. 66 McCarty contends that his attorney should have requested blood tests to prove that he was insane or 65 Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1, pp. 6-8. 66 Petition, Docket Entry No. 1, pp. 6, 18, 26. -24- that his mental intoxicated. 67 state was compromised as the result of being McCarty alleges that his trial attorney improperly coerced him to "sign his life away" and failed to defend him or challenge the Sentencing evidence Hearing. 68 presented by In addition, the State McCarty during contends the PSI that his counsel failed to challenge his "malicious, vindictive, unprofessional prosecution," which he believes was the result of "racial profiling by the State." 69 Claims for ineffective assistance of counsel are governed by the standard announced in Strickland v. Washington, 104 S. Ct. 2052 (1984). To prevail under the Strickland standard a defendant must demonstrate (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. 2064. "To satisfy the deficient performance prong, Id. at 'the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" (5th Cir. 2014) Hoffman v. Cain, 752 F.3d 430, 440 (quoting Strickland, 104 S. Ct. at 2064). This is a "highly deferential" inquiry; "[t]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 104 S. Ct. at 2065) . 67 Id. at 18. 6sid. 69 § Motion for Court's Leave to Amend Writ of H/C Title 28 USC 2254, Docket Entry No. 8, p. 2. -25- To satisfy the prejudice prong" [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." Strickland, 104 S. Ct. at 2068. The prejudice inquiry under Strickland is altered in the guilty-plea context, where the defendant bears the burden of demonstrating that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Moore, Lockhart, 131 S. 106 S . Ct. Ct. 733, 743 366, 370 (2011) (1985); see also Premo v. (quoting Lockhart). petitioner must "affirmatively prove prejudice." S. Ct. at 2067. 953 allegations Strickland, 104 A petitioner cannot satisfy the second prong of Strickland with mere speculation and conjecture. Whitley, A habeas F. 2d are 100!3, 1012 insufficient (5th to performance or actual prejudice. Cir. See Bradford v. 1992) . demonstrate Conclusory either deficient See Day v. Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009) McCarty's allegations of ineffective assistance against his trial attorney were rejected on state habeas corpus review. The state habeas corpus court found that McCarty failed to "allege or prove that but for trial counsel's alleged deficient conduct, he would not have pled guilty and would have insisted on going to trial." 70 The state habeas corpus 7 court also found that °Findings and Conclusions, Docket Entry No. 20-14, Finding of Fact No. 14, p. 76. -26- "[McCarty's] conclusory allegation that trial counsel 'coerced' him into pleading guilty is not sufficient proof to warrant habeas relief." 71 corpus therefore, that The state McCarty habeas failed to corpus court concluded, establish objectively unreasonable performance or actual prejudice as the result of his attorney's alleged deficiencies and that McCarty was not entitled to relief on his claim that trial counsel rendered ineffective assistance. 72 As the state habeas corpus court correctly noted, McCarty does not allege that, but for any shortcoming on the part of his counsel, he would have pled not guilty and would have insisted on a trial. More importantly, McCarty does not establish that his plea was involuntarily made for reasons outlined above. Given the state and court record, which contains representations of voluntariness made both written in open court, oral McCarty's conclusory allegations are insufficient to show that his plea was coerced by counsel or anyone else. see also Lee v. United States, See Day, 137 S. Ct. 566 F.3d at 540-41; 1958, 1967 (2017) (A reviewing court should not upset a guilty plea "solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies," but "should instead look to contemporaneous evidence to substantiate a defendant's 71 Id., Finding of Fact No. 17 (citing Ex parte Empey, S.W.2d 771, 775 (Tex. Crim. App. 1988)). 72 Id. at 77-78, Conclusions of Law Nos. 1, 2, 3, and 4. -27- 757 expressed preferences."). Thus, McCarty fails to show that he was denied effective assistance of counsel in connection with his plea or that the state habeas corpus court's decision was unreasonable in that regard. Although McCarty makes many other allegations of ineffective assistance against his trial attorney, 73 the respondent correctly notes that ineffective-assistance claims and other nonjurisdictional defects unrelated to the validity of a defendant's plea are waived by a valid guilty plea and are consideration on federal habeas review. 74 93 S. Ct. 1602, 1608 (1973) ("When therefore barred from See Tollett v. Henderson, a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he :Ls charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.") ; Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) plea has been entered, all nonjurisdictional (Once a guilty defects in the proceedings against a defendant are waived, including all claims of ineffective assistance of counsel that do not relate to the voluntariness of the guilty plea) . The respondent also correctly notes support his allegations of ineffective that McCarty does not assistance with 73 facts See Petitioner's MSJ, Docket Entry No. 30, pp. 3-4 (listing additional issues) . 74 Respondent's MSJ, Docket Entry No. 18, pp. 12-14. -28- showing that counsel's performance was constitutionally deficient. 75 The Fifth Circuit has made clear that conclusory ineffective- assistance claims of the type made by the petitioner do not merit federal habeas corpus relief. F.3d 577, 587 (5th Cir. See, e.g., Collier v. Cockrell, 300 2002) ('"This Court has made clear that conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.'") (citing Miller v. Green v. conclusory Johnson, Johnson, 160 allegations 200 F. 3d 274, F.3d 1029, in support 1042 of 282 (5th Cir. (5th Cir. a claim 2000)); 1998) of ("Mere ineffective assistance of counsel are insufficient to raise a constitutional issue."); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (holding that the petitioner's conclusory allegations failed to establish a valid ineffective assistance of counsel claim) . After considering all of his allegations, the court concludes that McCarty has not shown that his counsel had, raise, but failed to a viable defense on his behalf or that the result of his proceeding would have been different if she had. Under these circumstances McCarty fails to show that the state habeas corpus court's decision was unreasonable, and he does not demonstrate that he is entitled to relief on his claim that he was denied effective assistance by his trial attorney. 75 Id. at 15-16. -29- E. McCarty Was Not Denied Effective Assistance on Appeal In Claim Three McCarty contends that he was denied effective assistance on appeal when his attorney filed an Anders brief. 76 Although the state habeas corpus court did not directly address this allegation, McCarty does not allege facts showing that his claim is meritorious. To establish that appellate counsel's performance was deficient in the context of an appeal, the defendant must show that his attorney was "objectively unreasonable . . . in failing to find arguable issues to appeal - that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them." (internal counsel Smith v. Robbins, citation omit ted) was deficient for 120 (rejecting filing an S. Ct. a claim Anders 746, that brief) . 764 (2000) appellate If the defendant succeeds in such a showing, then he must establish actual prejudice by demonstrating a "reasonable probability" that, but for his counsel's deficient performance, his appeal." "he would have prevailed on Id. McCarty does not allege any facts showing that his appellate attorney had, but failed to raise, a nonfrivolous issue during his direct appeal. Likewise, he does not demonstrate that he would have prevailed or that the result of his appeal would have been any different if any particular issue had been raised. 76 Petition, Docket Entry No. 1, pp. 6, 18, 26. -30- Because he does not demonstrate deficient performance or actual prejudice in connection with his appellate attorney's efforts, McCarty has not established that he was denied effective assistance of counsel on direct appeal. Therefore, he is not entitled to relief on this issue. F. McCarty Waived His Challenge to the Sufficiency Evidence; Alternatively, the Claim is Without Merit In Claim Nine McCarty contends that insufficient to support a finding of guilt. 77 the of the evidence was McCarty argues that the State failed to present evidence showing that his fingerprints were on the firearm or that there was any gunpowder residue on his person. 78 who McCarty also argues that the credibility of the witnesses testified against him at the PSI Sentencing Hearing was waived any "questionable. " 79 The respondent correctly notes that McCarty challenge to the sufficiency of the evidence by entering a plea of no contest, in which establish his guilt. 80 77 he stipulated ;See Tollett, that the evidence would 93 S. Ct. at 1608; see also Petition, Docket Entry No. 1, p. 24. 7sid. 80 Respondent' s MSJ, Docket Entry No. shows that McCarty attempted to raise habeas corpus Application, but that the because challenges to the sufficiency cognizable" on collateral review. See -31- 18, pp. 12-13. The record this claim in his state trial court denied relief of the evidence are "not Findings and Conclusions, Kelley v. Alabama, (per curiam) 636 F.2d 1082, 1083-84 (5th Cir. Unit B 1981) (rejecting a habeas petitioner's attempt to challenge the sufficiency of the evidence in a guilty plea case) Moreover, the record confirms tha.t the State presented ample evidence to corroborate the plea at the PSI Sentencing Hearing, which showed that McCarty committed the offense in plain view of the witnesses who testified against him. surveillance video. 82 81 The offense was also captured on McCarty does not allege any facts undercutting the credibility or reliability of the evidence against him, which was more than sufficient to substantiate his plea and the trial court's finding of guilt. Accordingly, McCarty is not entitled to relief on this claim. G. McCarty's Claim of Error on State Habeas Review McCarty's only remaining claim (Claim One) is that he was denied due process on state habeas corpus because the reviewing court "failed to rule correctlyn on his claims. 83 The respondent notes that this allegation does not articulate a viable claim for Docket Entry No. 20-14, p. 77 (citing Ex parte Christian, 760 S.W.2d 659, 660 (Tex. Cr:Lm. App. 1988)). Although this appears to constitute a procedural default, the court does not address this issue because the claim fails for other reasons stated by the respondent. 81 Court Reporter's Record, vol. Docket Entry No. 20-2, pp. 9-44. 82 Video CD, Docket Entry No. 21 18:48:10-35) 83 3, (DA28 File 20140607184430 at Petition, Docket Entry No 1, p. 6. -32- PSI Sentencing Hearing, relief on federal habeas review. 84 held errors that "infirmities" or The Fifth Circuit has repeatedly that occur during state collateral review proceedings "do not constitute grounds for relief in federal court." 2001) (quoting Trevino v. 1999)) must Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir. Johnson, (citations omitted) demonstrate 168 F.3d 173, 180 (5th Cir. Instead, a habeas corpus petitioner "constitutional error at the trial or direct review level" before a federal court may issue the writ. Morris v. Cain, 186 F.3d 581, 585 n.6 (5th Cir. 1999). so here. Accordingly, this McCarty has not done allegation must be dismissed for failure to state a claim. Because McCarty has failed to establish that the claims presented in his Petition and supplemental pleadings have merit, Respondent's MSJ will be granted and Petitioner's MSJ will be denied. For reasons outlined briefly below, none of the other motions filed by McCarty demonstrate that he has a meritorious claim for relief. Therefore, this case will be dismissed. IV. A. Petitioner's Motions Petitioner's Motion to Supplement the Record McCarty has filed a additional evidence. 85 Motion to Supplement the Record with In particular, McCarty requests leave to submit an affidavit from his sister, Ms. Ruby Robinson, and medical 84 Respondent's MSJ, Docket Entry No. 18, pp. 7-8. 85 Motion to Supplement the Record, Docket Entry No. 29, pp. 1-3. -33- records that show that he was treated at a local hospital for abnormal blood pressure due to drug use on June 9, 2014, two days after the offense occurred on June 7, 2014, but that no blood work was done to test for the presence of illicit drugs in his system. 86 Federal habeas corpus review is ordinarily "limited to the record that was before the state court that adjudicated the claim on the merits." (2011). Cullen v. Pinholster, 131 S. Ct. 1388, 1398 McCarty provides no explanation for his failure to present these exhibits in support of his Application for habeas relief in state court. The proposed evidence does not otherwise demonstrate that he is entitled to relief for reasons discussed briefly below. McCarty provides thirty pages of medical records showing that he was treated at Ben Taub Hospital, which is operated by Harris Health System, "[d]rug abuse." 87 alcohol, on June 9, for symptoms associated with During that treatment McCarty reported "drinking smoking marijuana, occurred and 2014, that he lost and taking PCP" consciousness before the offense until he woke up the following day "in the back of a cop car. " 88 McCarty argues that these medical records are evidence of his mental state on the day of the offense. 89 86Id. 87 Medical Records No. 29-1, pp. 3-33. 89 from Harris Health System, Docket Entry Motion to Supplement the Record, Docket Entry No. 29, p. 1. -34- In addition to the medical records, McCarty provides a statement from Robinson, dated October 1, 2018, in which she claims that defense counsel was reasons: (1) "totally inadequate" for the following she discounted the fact that McCarty committed the offense while "under the influence of hallucinegenic [sic] drugs" because drug use was not a defense to the commission of a crime; (2) she did not contact several individuals Hackney, Samentrice Young, (Reverend Kenneth R. Reverend Carl Jones, Patricia Mays, Gloria Jean King, Michael and Sylvia Thomas, and Karl Schmidbauer) who could have served as character witnesses; and (3) she failed to conduct an adequate cross-examination of the State's witnesses. 90 To the extent that McCarty contends that the medical records show that he was unconscious on the statement is refuted by the record. day of the offense, that McCarty admitted during his testimony at the PSI hearing that he remembered events that took place during the day the offense occurred, but that he could not recall what happened when the shooting took place, attributing his lack of recollection to the fact that he had used PCP the night before. 91 Although McCarty appears to contend that this evidence demonstrates that counsel failed to investigate or preserve evidence of drug usage that affected his mental state, it is well established 90 in Texas that "'v]oluntary intoxication does not Statement from Ruby Robinson, Docket Entry No. 29-1, p. 1. 91 Court Reporter's Record, vol. Docket Entry No. 20-2, pp. 72-74. -35- 3, PSI Sentencing Hearing, constitute a defense to the commission of crime.'" 313 S.W.3d 317, Code 328 8 . o4 (a) ) § (Tex. Thus, Crim. App. 2010) Davis v. State, (quoting Texas Penal Texas law "bars the use of evidence of voluntary intoxication to negate the culpable mental state of a crime." Id. at 329 (citations and internal quotation marks omitted) Ruby Robinson's contention that defense counsel failed to contact character references on McCarty's behalf is also refuted by the record, which shows that defense counsel presented letters from Robinson and numerous indi victuals, identified (Dorothy Gatson, including some of those she Gloria Jordan-King, Kimberly Dorsey, Cynthia McCarty, Bernell Russell, Danyelle Dorsey, Pastor Carl P. Jones, Charles Robinson, Jr., and Brenda Gatson) in support of the PSI Report. 92 and Schmidbauer Karl Defense counsel also called Robinson, Patricia Mays, sentencing hearing. 93 to testify in person during McCarty's McCarty's claim that defense counsel failed to call these individuals as witnesses is without merit. To the extent that defense counsel failed to contact or present testimony from any of the other individuals identified by Ms. Robinson, McCarty provides no statement from any other potential witness and he does not provide other information about 92 PSI Report, Docket Entry No. 20-3, pp. 22-33. 93 Court Reporter's Record, vol. Docket Entry No. 20-2, pp. 45-62. -36- 3, PSI Sentencing Hearing, what they would have uncalled witnesses said are if called disfavored, to testify. especially if "Claims the of claim is unsupported by evidence indicating the witnesses's willingness to testify and the substance of the proposed testimony." Thaler, 601 F.3d 347, 352 (5th Cir. Quarterman, 496 F.3d 419, 428 2010) Gregory v. (citing Harrison v. (5th Cir. 2007)). A petitioner who alleges ineffective assistance of counsel based on the failure to call either a "lay [or] expert witness[]" must "name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense." Cir. 2009) Day v. Quarterman, 566 F.3d 527, 538 (5th (citations omitted). Absent a showing that a particular witness would have offered testimony favorable to the defense, a petitioner's claim is E:peculative and conclusory, and does not demonstrate either deficient performance or resulting prejudice on his trial counsel's part. See Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001). Robinson's critic ism of defense counsel's cross -examination is similarly unsupported by performance was deficient. specific facts showing that her Robinson contends that defense counsel should have challenged the testimony given by Chance Perkins, who she claims should not have been "treated as a hero," but neither Robinson nor McCarty propose any particular question defense counsel could have asked that would have called his testimony into -37- question. 94 Robinson also claims that defense counsel should have asked the victim's husband, Willie Jones, who saw McCarty shoot his wife in the head while he was standing inside the gas station, "why he didn't run out of the store to stop [McCarty] at any point." 95 McCarty offers no argument showing that the question, if asked and answered, would have changed the result in this case. The mere allegation of inadequate performance during cross-examination is conclusory and insufficient to performance or actual prejudice. United States (unpublished) counsel's v. Irby, (denying failure "to 103 establish either deficient See Day, 566 F.3d at 540 (citing F.3d 126, *4 (5th ineffective assistance adequately cross-examine Cir. claim government witnesses" because petitioner "fail [ed] a 1996) based on number of to set forth . the possible impact of any additional cross-examination"); Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir. 1992) habeas relief where petitioner conclusory allegations counsel was ineffective "offered nothing more in his pleadings" for (denying than the to support claim that failing to investigate and present evidence)). Because McCarty does not demonstrate that any of the proposed new evidence would entitle him to prevail, his Motion to Supplement the Record will be denied. 94 Statement of Ruby Robinson, Docket Entry No. 29-1, p. 1. 9sid. -38- B. Petitioner's Motion for Judicial Notice and Motion to Provide Supplemental Argument McCarty has filed a Motion for Judicial Notice and a Motion to Provide Supplemental Ar•:rument recent Supreme Court case, (2018) . 96 regarding the Wilson v. applicability of Sellers, 13 8 S. Ct. a 118 8 In Wilson the Supreme Court explained that when the most recent state court to consider a constitutional issue provides a "reasoned opinion," a federal habeas corpus court must "review[] the specific reasons given by the state court and defer[] to those reasons if they are reasonable." Id. at 1192. If the opinion was made without a written explanation, a federal court should "'look through' the unexplained decision to the last related state-court decision" and "presume that the unexplained decision adopted the same reasoning." Id. In other words, federal habeas corpus courts confronted with an unexplained state court decision "are to 'look through' the decision to an earlier state court opinion and presume that the earlier one provides the relevant rationale." Vannoy, s. 898 F.3d 561, S68 (5th Cir. 2018) Thomas v. (citing Wilson, 138 Ct . at 119 2) . To the extent that McCarty asks the court to take notice of the holding in Wilson and his supplemental briefing, his motions will be granted. McCarty does not show, however, that the holding 96 Motion for Judicial Notice, Docket Entry No. 31, pp. 1-4; Motion to Provide Supplemental Argument, Docket Entry No. 32, pp. 1-3. -39- in Wilson or its application to the state court's decision in this instance benefits him in any way or makes a difference in this case. McCarty's contention that he is entitled to relief under Wilson, therefore, is without merit. C. Petitioner's Motion to Add a New Claim McCarty has also filed a Motion that requests leave to add a new claim, challengin<:J Specifically, a deficiency in his indictment. 97 McCarty contends that the indictment is defective because it incorrectly lists his birth date as June 1, 1958, when his actual date of birth is June 1, 1959. 98 The indictment returned by the grand jury lists McCarty's birth date as "06-01-1959." 99 McCarty does not show that the indictment contains an error or that he would be entitled to relief if it did. The type of error he describes is the sort of non- jurisdictional defect that is waived by a valid guilty plea. Cothran, 302 F.3d at 283 apply to defects in the See (noting that "standard waiver principles indictment") Cotton, 122 S. Ct. 1781, 1785-86 (2002)) (citing United States v. Because McCarty does not establish a valid claim for relief, his Motion to Add a New Claim will be denied. 97 Motion to Add New Claim, Docket Entry No. 33, p. 1. 9sid. 99 Indictment, Docket Entry No. 19-19, p. 11. -40- v. 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 makes "a substantial showing of the denial of a constitutional right," 28 U.S. C. demonstrate court's "that 225,3 {c) {2) , § 'reasonable assessment of the which requires a petitioner to jurists would constitutional find the claims district debatable wrong.'" Tennard v. Dretke, 124 S. Ct. 2562, 2565 {2004) Slack v. McDaniel, controlling 120 S. standard this Ct. 1595, requires 1604 a to show "jurists of reason could disagree with the [reviewing] resolution of that his constitutional claims or {quoting Under the {2000)). petitioner or that court's jurists could conclude the issues presented are adequate to deserve encouragement Buck v. Davis, to proceed further." 137 S. Ct. 759, 773 {2017) {citation and internal quotation marks omitted) A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 {5th Cir. 2000). See After careful review of the pleadings and the applicable law, the court concludes that reasonable jurists would not find the assessment of the constitutional claims debatable or wrong. Because the petitioner does not demonstrate that his claims could be resolved -41- in a different manner, a certificate of appealability will not issue in this case. VI. Conclusion and Order The court ORDERS as follows: 1. Respondent Lorie Davis's Motion for Summary Judgment (Docket Entry No. 18) is GRANTED. 2. Petitioner James Lawrence McCarty's Motion for Summary Judgment (Docket Entry No. 30) is DENIED. 3. McCarty's Motion for Judicial Notice (Docket Entry No. 31) and Motion to Submit Supplemental Argument (Docket Entry No. 32) are GRANTED. 4. McCarty's Motion to Supplement the Record (Docket Entry No. 29) and Motion to Add a New Claim (Docket Entry No. 33) are DENIED. 5. McCarty's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DENIED, and this action will be dismissed with prejudice. 6. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 23rd day of January, 2019. UNITED STATES DISTRICT JUDGE -42-
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