Rumbaugh v. State Of Texas et al, No. 4:2019cv00599 - Document 23 (S.D. Tex. 2019)

Court Description: MEMORANDUM OPINION AND ORDER. Respondent's motion for summary judgment is GRANTED and this case is DISMISSED WITH PREJUDICE. Any and all pending motions are DENIED AS MOOT. A certificate of appealability is DENIED. (Signed by Judge Gray H Miller) Parties notified.(jdav, 4)

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Rumbaugh v. State Of Texas et al Doc. 23 United States District Court Southern District of Texas ENTERED IN TIIE U M TED STA TES D ISTR IC T C O UR T FO R TH E SO UTH ERN DISTR ICT O F TEX AS H O U STO N D IV ISION August 09, 2019 David J. Bradley, Clerk JOELR AY RUMBAUGH, Petitioner, CIvlL A CTION NO,11-19-599 LORIED AVIS, Respondent. M EMORANDUM OPINION AND O RDER Petitioner, a state inm ate proceeding pro se, filed a section 2254 habeas case challenging his2017 conviction and life sentence foraggravated sexualassaultofa child. Respondentfiledamotion forsummaryjudgmenton June 18,2019,servingpetitionera copy athisaddressofrecord thatsame date.(DocketEntry No.20.) Despite expiration ofa reasonable period oftim e of fortp five days orm ore,petitionerhas failed to respond tothemotion forsummaryjudgment,and themotion isuncontested. Having considered the m otion,the pleadings,the record,and the applicable law , the CourtGRANTS summary judgmentand DISM ISSES this lawsuitforthe reasons show n below . B ackground and Claim s Petitionerpleaded guilty to aggravated sexualassaultofa child and w assentenced to life im prisonm entin August2017. H is subsequentnotice of appealw as dism issed for wantofjurisdictionbythe intermediatestatecourtofappeals.Hisapplication forstate Dockets.Justia.com habeas reliefw as denied by the Texas CourtofCrim inalAppeals on D ecem ber 5,2018. Petitionerfiled thistim ely federalhabeaspetition on February 20,2019. Petitioner raises the follow ing grounds for federal habeas relief in the instant proceeding' . 1. The State breached theplea agreem entby inform ing thetrialcourtof petitioner's othersexualassaultconvictions; Petitioner's guilty plea was involuntary because he w as led to believe hew ould receive leniency from the trialcourt; Trialcounselw as ineffective and unprepared forsentencing due to a fam ily death and office tlooding; Petitioner discovered new evidence during prison counseling thathe w assexually abused as a child and hasPTSD ;and 5. The trialcourtdid not consider the testim ony of petitioner's expert w itnessduring sentencing. Respondent argues that these habeas grounds have no m erit and should be sum m arily dism issed. TheApplicable LegalStandards H abeasReview This petition is governed by the applicable provisions of the Antiterrorism and EffectiveDeath Penalty Actof1996 (AEDPA). 28U .S.C.j 2254.UndertheAEDPA, federalhabeasreliefcannotbe granted on legalissues adjudicated on the merits in state courtunless the state adjudication was contrary to clearly established federal1aw as determ ined by the Suprem e Courq or involved an unreasonable application of clearly established federal1aw as determ ined by the Suprem e Court. Harrington v.Richter,562 U.S.86,98-99 (2011);Williams v.Taylor,529 U.S.362,404-05 (2000);28 U.S.C.jj 2254(d)(1),(2). A state courtdecision iscontrary to federalprecedentifitappliesarule thatcontradicts the governing 1aw setforth by the Suprem e Court,or if itconfrontsa set of facts thatare m aterially indistinguishable from such a decision and arrives at a result differentfrom theSupremeCourt'sprecedent.Early v.Packer,537U.S.3,7-8 (2002). A state court unreasonably applies Suprem e Courtprecedent if it unreasonably applies the correctlegalrule to the facts of a particular case,or unreasonably extends a legalprinciple from Suprem e Courtprecedentto a new contextwhere itshould notapply, or unreasonably refuses to extend thatprinciple to a new contextwhere it should apply. W illiams, 529 U .S. at 409. In deciding w hether a state court's application was unreasonable,thisCourtconsiderswhethertheapplicationwasobjectivelyunreasonable. fJ.at411. ûsltbears repeating that even a strong case forreliefdoes notm ean the state court's contrary conclusion w as unreasonable.'' Richter,562 U .S.at 102. A s stated by the Suprem e Courtin Richter, Ifthis standard is difficultto m eet,thatis because itw asm eantto be. As amended by AEDPA,j 2254(d)stopsshortofimposing a complete baron federalcourtrelitigation ofclaimsalready rejected in stateproceedings.lt preserves authority to issue the w rit in cases w here there is no possibility fairminded jurists could disagree thatthe state court's decision contlicts with this Court'sprecedents. ltgoesno farther. Section 22544d)retlects the view thathabeas corpus is a ûçguard againstextrem e m alfunctions in the statecriminaljusticesystems,''notasubstituteforordinary errorcorrection through appeal. 1d.,at102-03(emphasisadded' ,internalcitationsomitted). The A ED PA affords deference to a state court's resolution of factual issues. Under28U.S.C.j2254(d)(2),a decision adjudicated on themeritsin astate courtand based on a factualdeterm ination w illnot be overturned on factualgrounds unless it is objectively unreasonablein lightoftheevidencepresentedinthestatecourtproceeding. Miller-Elv.Cockrell,537U.S.322,343 (2003).A federalhabeascourtmustpresume the underlying factualdeterm ination ofthe state courtto be correct,unlessthe petitioner rebutsthe presumption ofcorrectness by clear and convincing evidence. 28 U.S.C.j 2254(e)(1);seealsoM iller-El,537U.S.at330-31. Sum mary Judgment ln deciding a motion for summary judgment,the districtcourtmustdetermine whetherthepleadings,discovery materials,and the summary judgmentevidence show thatthere is no genuine issue as to any m aterialfactand thatthe m oving party is entitled tojudgmentasa matteroflaw. FED.R.CIV.P.56(c). Once the movantpresentsa properly supported motion forsummaryjudgment,the burden shiftsto thenonmovantto show w ith signiticantprobative evidence the existence ofa genuine issue ofm aterialfact. Hamiltonv.SegueSoftware,Inc.,232F.3d473,477(5thCir.2000). W hile summary judgment rules apply with equal force in a section 2254 proceeding,the rules only apply to the extentthatthey do not conflictw ith the federal rulesgoverning habeasproceedings. Therefore,section 2254(e)(1),which m andatesthat astatecourt'sfindingsaretobepresumedcorrect,overridesthesummaryjudgmentrule that all disputed facts m ustbe construed in the lightm ost favorable to the nonm ovant. 4 Accordingly, unless a petitioner can rebut the presum ption of correctness of a state court's factualfindings by clear and convincing evidence,the state court'sfindings must be accepted ascorrectby the federalhabeas court. Sm ith v.Cockrell,311 F.3d 661,668 (5th Cir.2002),overruled onothergroundsby Tennard v.Dretke,542 U.S.274 (2004). State TrialCourtFindingson H abeas Review The state trialcourtm ade the follow ing findings on state habeasreview : Applicant filed his first application for writ of habeas corpus pursuantto Article 11.07 ofthe Code of Crim inalProcedure in the above-num bered cause asserting the follow ing groundsforrelief: The Trial Court m isled the applicant m aking the applicant believe The TrialCourtwould show leniency. b. Applicant's attorney (was) ineffective, unavailable for preparation,and misled himl.l TheStateBreachedthePleaBargainAgreementl.) d. Post Sentence evidence uncovered after his sentence should have been adm itted. A llofthe above allegationsare unfounded. Applicant entered a plea bargain agreem entw ith the State whereby the State abandoned the continuous allegation of the underlying conviction and dism issed three othercharges. 4. Applicantisnotcrediblel.) Applicant'sgtrialcounselliscrediblel.l Applicant's (trial counselq was well prepared and put on a solid defense. 7. Applicant testified at the sentencing hearing against his attorney's advice. 8. Applicantinsisted on a strategy attrialthathis attorney advised him notto do. Applicantw as his worst enemy during cross exam ination leaving a very bad impression onTheTrialCourtl.j The TrialCourtwasnotm oved by the Applicant'stestim ony. The State honored the plea bargain agreem entas itw aspresented to TheTrialCourt. The alleged new evidence would nothave sw ayed The TrialCourt. N othing in applicant's writ of habeas corpus as it applies to new evidence points to anything of a redeem ing value that w ould have im pressed The TrialCourt. 14. Applicant m ade num erous false statem ents in his writ of habeas COT US. 15. Applicanttestified attrial and during thattestim ony he consistently tried to m inim ize his conduct,notacceptfullresponsibility forwhat he did to his grandson, and blam e everything else in his life but him self. Ex parte Rumbaugh,at184-85 (originalcapitalizations). The Texas CourtofCriminal Appealsrelied on these findingsin denying habeasrelief.1d.,atcover. Breach ofpleaAgreement Petitioner contends that his plea agreem entw as breached because the trial court w as inform ed ofpetitioner'spriorsexualassaultconvictionsatsentencing. ççlW qhen a plea restsin any signitscantdegree on a promise oragreementofthe prosecutor,so that it can be said to be part of the inducem ent or consideration, such promise mustbe fulfilled.''Santobello v.New York,404 U.S.257,262 (1971).This Courtttm ustinterpretthe plea agreem entlike a contract,in accord w ith w hatthe parties intended.'' United States v.Bond,414 F.3d 542,545 (5th Cir.2005). However,under Fifth Circuitprecedent,a petitioner w ho relies on an unfulfilled state prom ise to obtain habeas relief tsm ay not rely on conclusory allegations or even his ow n unsupported testimony.'' Smith v.Blackburn,785 F.2d 545,548 (5th Cir.1986). To merithabeas reliefundersuch claim ,apetitionermustprove1ç(1)exactly whattheterm softheprom ise were;(2) exactly when,where,and by whom such a promise was made;and (3) the precise identity ofan eyew itness to the prom ise.'' H ayes v.M aggio,699 F.2d 198,203 (5th Cir.1983). Petitioner doesnotm eetthis burden ofproof. A s found by the state trialcourton collateralreview,Stlpetitionerlentered a pleabargain agreementwith the State whereby the State abandoned the continuous allegation ofthe underlying conviction and dism issed three othercharges.''Exparte Rum baugh,at 184. Thetrialcourtfurtherfound that,ts-rhe State honored the plea bargain agreem entas itw aspresented to The TrialCourt.'' 1d.,at 185(originalcapitalizations). The open plea agreem entdid notobligate the State to w ithhold from the trialcourt inform ation regarding petitioner's sexual m olestations of his other grandsons. To the contrary,the agreem entlim ited only the crim inalconductto which petitionerw ould plead guilty. M oreover,no agreem ents w ere m ade as to w hat evidence the State would,or would not, presentatthe punishm enthearing. To the contrary,the record clearly show s that petitioner understood, and agreed,thatthe State w ould have the right to introduce evidence ofhis convictions for sexualassaultofhis otherthree grandsons. Specifically, petitioneracknow ledged in writing that,as to the otherconvictions,ççIask thatthe Court take into accountmy guiltin the above felony offensets)in determining sentence in the felony inwhich1shallstand adjudgedguilty,thereby barringfurtherprosecution ofsaid offensetsl.''1d.at15,18,20,21. The state courtrejected petitioner's claim for breach of the plea agreement. Petitionerfailsto show thatthe state court'sdeterm ination w ascontrary to,orinvolved an unreasonable application of, federal 1aw or w as an unreasonable determ ination of the factsbased on theevidence in therecord. Respondentisentitledto summaryjudgment dism issalofthisclaim . Involuntary Plea Petitioner argues thathis guilty plea was involuntary and unknow ing because he w as 1ed to believe thatthe trialcourtw ould be lenientatsentencing. Petitionertestified at the punishm enthearing thathe believed imprisonm entand therapy fora few yearsw ould be appropriate. H e claim s thathe w as denied leniency because the trialcourtim posed a life sentence. The Constitution requiresthata defendantenter a guilty plea thatis voluntary and that his related waivers be m ade know ingly,intelligently,and w ith sufficientaw areness ofthe relevantcircum stances and likely consequences. United States v.Ruiz,536 U .S. 622,629 (2002);see also M ontoya v.Johnson,226 F.3d 399,405 (5th Cir.2000). A defendantshould be inform ed ofthe consequences ofhis plea,which is satisfied ifhe is inform ed of the m aximum term of im prisonm ent. H obbs v.Blackburn,75l F.2d 1079, 1082 (5th Cir.1985).UnderSupremeCourtprecedent,lçlaqplea ofguilty entered by one fully aware of the direct consequences,including the actualvalue of any comm itm ents m adeto him by the court,prosecutor,orhisow n counsel,m uststand unless induced by .. . misrepresentation (including unfulfilled orunfulfillable promisesl.'' Brady v. United States,397U.S.742,755(1970). The state courtrecords and plea docum entsin thiscase dem onstrate thatpetitioner received the constitutionally-required inform ation. M oreover,trial counsel's affidavit establishes that petitioner w as well aw are thathis range of punishm ent under the plea agreem ent included a life sentence. Trial counsel testified in her affidavit that she advised petitionerofthree optionsforproceeding forward,one ofwhich w asto gpllea to the charge and appealto the Courtfor leniency ata sentencing hearing. Iexplained to M r.Rum baugh thatw ecould enteran open plea and thatw e could presenta case to the courtexplaining his actions. 1explained to M r.Rum baugh thatthere are four alleged victim s and that the state is offering a plea dealto one alleged victim and the state w ould dism iss the charges relating to the other three alleged victim s pursuantto Texas Penal Code Rule 12.45(a) and that we are only pleading to one count of Aggravated SexualAssault of a Child under 14 (continuous). I further explained to M r.Rum baugh the penalty range the courtw ould be using to sentence him and that this options could be done without having his grandsons testify butM r.Rum baugh w ould be allow ed to be heard by the Courtand a plea for leniency can be done at this tim e in hopes thatthe Courtw ould give him som ething less than the life sentence the state w as offering. M r.Rum baugh feltthis w as the bestoption forhim and the one where hew ould have the bestchance atreceiving a sentence lessthan life. 9 ExparteRum baugh,at57. Petitionerultim ately chose the above option,and they m oved fonvard on the open plea agreem ent: At the tim e M r. Rum baugh entered the plea agreem ent he and I went through each docum ent that he signed and I thoroughly explained each documentincluding the documentdismissing the unadjudicated offenses againstthe other three alleged victim s. M r.Rum baugh w as given tim e to read the docum ents and ask questions ifhe did notunderstand som ething as wellas the option to notm ove fonvard w ith the plea dealifhe w anted to exercise anotheroption. 1d.M oreover,the plea hearing record reflectsthe follow ing exchangesbetween petitioner and the trialcourt: THE COURT: D o you understand when you plead guilty - and m y understanding is you're going to be pleading guilty w ithouta recom m endation orw ithoutan agreem entas to punishm ent the Court is going to have the discretion to award punishm entw ithin the range of 5 years in prison to 99 years in prison or life in prison.I w antyou to understand that. DEFENDA NT: Yes,yourH onor.Y es,sir. THE COURT: So do you understand that, if you plead guilty here today,thatisthe range ofpunishm ent? DEFENDA NT: Ido understand that,yourHonor. * THE COURT: * # + So that's w hatyou w antto do: Plead guilty,have this Courtacceptyourplea of guilty,and this Courtgssess punishm entwithoutajurytrial? DEFENDA NT: Yes5sir* THE COURT: Allright,Iw illacceptyourplea ofguilty. 10 Ex parte Rumbaugh,at 66,69. Petitioner additionally affirm ed thathe w as freely and voluntarily pleading guilty, was satisfied w ith his legal representation, did not w ant additionaltim e to investigate,and thathe understobd thepleapaperwork. 1d.,at66-71. Petitionerpresentsno probative summaryjudgmentevidencethathewas1ed to believe the courtw ould be lenientatpunishm entifhe pleaded guilty,and none appearsin the record. To the contrary,the record show spetitionerw as consistently advised thatlife im prisonm entw ould rem ain a potentialpunishm entfollowing a plea. A lthough Counsel advised petitionerthatan open plea would provide petitionerhisbestchance atreceiving a sentence less than life, neither she, the State,nor the trial court 1ed him to expect leniency. Petitioner m ay have hoped for leniency or believed that he deserved such leniency,buthe wasnotprom ised leniency. Habeasreliefisunw arranted. The state courtrejected petitioner'sclaims challenging the voluntariness ofhis guilty plea. Petitionerfails to show thatthe state court's determ ination was contrary to, or involved an unreasonable application of, federal 1aw or w as an urlreasonable determ ination ofthe facts based on the evidence in the record. Respondentis entitled to summaryjudgmentdismissalofthisclaim. IneffectiveAssistanceof TrialCounsel The Sixth Am endm ent to the United States Constitution guarantees a crim inal defendantthe rightto the effective assistance of counsel. U .S.CONST.am end.V1. A federalhabeas corpuspetitioner'sclaim thathew asdenied effective assistance ofcounsel ismeasured by the standards setoutin Strickland v.Washington,466 U.S.668 (1984). 11 To assert a successful ineffectiveness claim , a petitioner m ust establish both constitutionally deficient performance by counsel and actualprejudice as a result of counsel's deficientperform ance. 1d.at687. The failure to dem onstrate either deficient performance oractualprejudice is fatalto an ineffective assistance claim. Green v. Johnson,160 F.3d 1029,1035(5th Cir.1998). A counsel'sperformance is deficientif itfalls below an objective standard of reasonableness. Strickland, 466 at 688. In determ ining w hether counsel's performance wasdeficient,judicialscrutiny mustbe highly deferential,with a strong presum ption in favor of finding thattrialcounselrendered adequate assistance and that the challenged conductwas the productofa reasoned trialstrategy. W estv.Johnson,92 F.3d 1385, 1400 (5th Cir. 1996). To overcome this presumption,a petitioner must identify the acts or om issions of counselthat are alleged notto have.been the result of reasonableprofessionaljudgment. Wilkerson v.Collins,950 F.2d 1054,1065 (5th Cir. 1992). However,a mere errorby counsel,even ifprofessionally unreasonable,doesnot warrantsetting asidethejudgmentofacriminalproceeding iftheerrorhadno effecton thejudgment.Strickland,466U.S.at691. Actualprejudice from a deficiency isshown ifthere is areasonable probability that,butforcounsel's unprofessionalerror,the resultofthe proceeding w ould have been different.1d.at694. To determineprejudice,the question focuseson whethercounsel's deficient perform ance renders the result of the trial unreliable or the proceeding fundamentally unfair. fockhartv.Fretwell,506 U.S.364,372 (1993). In thatregard, 12 unreliability or unfairness does not result if the ineffectiveness does not deprive the petitionerofany substantive orproceduralrightto w hich he isentitled.1d. Petitioner claim s that trialcounselw as unprepared and ineffective at sentencing due to a death in her fam ily and tlooding ofheroffice. ln heraffidavitsubm itted to the state trialcourt,counseltestified in relevantpartas follow s: (Petitioner)filed an appealbased on ineffective assistanceofcounseldueto extenuating circum stances of Hurricane Harvey and a death in my fam ily resulted in notbeing able to com m unicate w ith m e and therefore w e w ere notableto form adefense. According to myrecordsImetwith (petitioner) in courton fouroccasionsand in jailon three occasions once in July and tw ice in August at each visitw e discussed the charge and offer from the state. There w as a death in m y fam ily atw hich tim e Iclosed m y office early and traveled out of state for a funeral. I forwarded m y calls to m y cellphone and traveled w ith m y laptop so that1w asable to w ork on clientfiles during downtim e while Iw asoutoftow n. Iw asonly out-of-tow n for5 day two of which w ere a Saturday and Sunday. (Petitioner)also allegesthatHunicaneHarvey and the subsequenttlooding caused m e to be unavailable to defend him . The hunicane and tlooding did require m e to have to alter my norm alw ay ofdoing business,butitdid not preventm e from preparing forthe sentencing hearing. (Petitioner)iscorrectinstatingthatduringthetimehewasinjailinFayette County there w as a death in m y fam ily and there w as a hurricane that causedmetohavetoreschedulemyvisitwithhim atthejail,howeverIdid reschedule my visitand we discussed in detail(petitioner'sqcase and his options. * % 13 + (Petitioner) was sentenced on August 23, 2017 which was set for a sentencing hearing on August 9,2017. Prior to this date there w as record flooding in Fayette County and there w ere severaldays in which Iw asnot ableto travelto myoffice and thejail. However,lwaswellawareofthe possibility of the tlooding and in preparation Ipacked up allofm y active filesand moved them to my homewhereIwasableto review (petitioner's) file and w ork on our strategy forthe upcom ing hearing w hile sheltering in place atm y hom e during the hurricane and subsequent flooding. M y not being ableto getto my office orcommunicatewith (petitioner)forashort period oftim e in no w ay affected m y ability to prepare for the sentencing hearing. Exparte Rumbaugh,at56-58. The statetrialcourtexpressly found thattrialcounselw as credible,and thatpetitionerwasnotcredible.f#.,at184. N eitherpetitionernorthe record establishesthatcounselw as deticientorthat,but for any alleged deficiency,there is a reasonable probability that petitioner w ould have received a low er sentence. Petitioner fails to dem onstrate deicient perform ance and prejudiceunderStrickland,andhabeasreliefisunwarranted. Thestatecourtrejectedpetitioner'sclaimsofineffectiveassistanceandfoundthat trial counsel w as not ineffective. Petitioner fails to show that the state court's determ ination w as contrary to,or involved an unreasonable application of,Strickland or w as an unreasonable determ ination of the facts based on the evidence in the record. Respondentisentitledtosummaryjudgmentdismissalofthisclaim. N ew Evidence Petitioner next alleges that, during counseling sessions at prison follow ing his conviction,he discovered thathe was sexually abused as a child and had PTSD (post- 14 traumatic stress disorder). He argues that this new evidence should allow a reconsideration ofhisplea and sentence. Petitioner m isstates the facts. H e testified atlength during the punishm entphase oftrialthathe had been sexually m olested as a child by olderyouthsin hisneighborhood, and thatthe incidents lefthim angry,suicidal,and w ith hom osexualintents and desires, Sddemonic forces controllging his) life a1lthe way through adolescence and into ghisq adulthoodl.l'' ExparteRumbaugh,at136-37.Consequently,hishistory ofsexualabuse as a child and the effects it had on his life did not constitute Eçnew evidence.'' That petitioner m ay have had PTSD is not established by probative, competent sum m aly judgmentevidenceintherecord.Petitioner'sconclusoryallegationsareunsupportedand insufficient to raise a genuine issue of m aterial fact sufficient to preclude sum m ary judgment.SeeRossv.Estelle,694F.2d 1008,1011-12(5th Cir.1983);Kochv.Puckett, 907 F.2d 524,529 (5th Cir.1990). Regardless,the state trialcourtexpressly found that lç-f'he alleged new evidence w ould nothave sw ayed The TrialCourt,''and thatStN othing in applicant's writofhabeas corpus as itappliesto new evidence pointsto anything ofa redeem ing value thatw ould have im pressed The Trial Court.'' fx parte Rum baugh,at 185 (originalcapitalizations). No issue orerrorofa constitutionaldimension is shown, and habeasreliefisunw arranted. The state courtrejected petitioner's claims regarding new evidence. Petitioner ' fails to show that the state court's determ ination was contrary to, or involved an unreasonable application otl federallaw or was an unreasonable determination of the 15 factsbased ontheevidencein the record. Respondentisentitledto summaryjudgment dism issalofthisclaim . Expert W itness Petitioner claim s thatthe trialcourt did not consider the testim ony of his expert witness, Rebecca H egar, during the punishm ent phase of trial. In support, petitioner appears to argue that,had the trial courtconsidered the testim ony,he would not have im posed a life sentence. The record show s that Rebecca H egar testified on behalf of the defense during punishm ent. She stated thatshe had a dodorate in socialw ork and occasionally appeared as an expert w itness at trial in cases involving the state and child abuse. Ex parte Rum baugh, at 112-13. She testified in general term s regarding sexual m olesters and recidivism ,and based hertestim ony on areview ofthe literature. H egarstated shehad no clinical experience in treating sexual m olesters,and thatpetitioner's case w as her first tim e testifying as an expertw itness on behalf of a sexual offender. 1d.,at 123. She further stated that she was personally acquainted w ith petitioner due to his prior em ploym entas her father's caretaker,and thatshe thoughtvery highly of him . f#.,at 118. N othing in the record supportspetitioner'sbald assertion thatthe trialcourtdid not consider H egar's testim ony in determ ining petitioner's sentence. Rather,the trialcourt clearly stated on the record thatitw asûttroubled''by petitioner'sow n testim ony presented during the punishm ent hearing. The court was particularly troubled by petitioner's 16 inability to accept responsibility for sexually m olesting his grandson, and found that petitioner ûlw as his w orstenem y during cross exam ination leaving a very bad im pression on The TrialCourt;that the courtwas not moved by petitioner's testimony;and that petitioner tkconsistently tried to m inim ize his conduct,not acceptfullresponsibility for whathe did to hisgrandson,and blam e everything else in his life buthim self.'' Exparte Rum baugh,at 185. Under Rule 2(c) of the Rules Governing Section 2254 Cases, a petitioner is required to plead facts in supportofhis claim s. Absent evidence in the record,a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition,unsupported and unsupportable by anything else contained in the record,to be of Probative evidentiary value. Ross v.Estelle,694 F.2d 1008, 1011-12 (5th Cir.1983). Conclusory allegations do notraise a constitutionalissue in a habeasproceeding. 16L at 1012. Petitioner's conclusory allegations are insuftscientto supporta habeasclaim orto raiseagenuineissueofmaterialfactprecluding summaryjudgment.SeeKochv.Puckett, 907F.2d 524,529(5th Cir.1990).Habeasreliefisunwarranted in thisinstance. Thestatecourtrejectedpetitioner'sclaimsregardinghisexpertwitness.Petitioner fails to show that the state court's determ ination was contrary to, or involved an unreasonable application otl federal1aw or was an unreasonable determination of the facts based on the evidence in the record. Respondentisentitled to summaryjudgment dism issalofthisclaim . 17 E videntiary H earing A district court m ay hold an evidentiary hearing only when the petitioner has shown either thata claim relies on a new ,retroadive rule ofconstitutional1aw thatwas previously unavailable,28U.S.C.j 2254(e)(2)(A)(i),ortheclaim relieson a factualbasis thatcould nothavebeen previously discovered by exercise ofdue diligence,28 U.S.C.j 2254(e)(2)(A)(ii); and the facts underlying the claim show by clear and convincing evidencethat,butfortheconstitutionalerror,noreasonablejurorwouldhaveconvicted thepetitioner.28U.S.C.j2254(e)(2)(B). Petitionerherehasnotmettheserequirements, and the Courthas determ ined thatno evidentiary hearing is necessary for disposition of the claim sraised in thishabeasproceeding. Conclusion Respondent'smotionforsummaryjudgment(DocketEntryNo.20)isGRANTED and this case is D ISM ISSED W ITH PREJU D ICE. A ny and al1pending m otions are DEN IED A S M OOT. A certificate ofappealability isD EN IED . Signed atH ouston,Texason A ugust ,2019. * Gray H . iller Sinio U nited States 'strictJudge 18

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