Barker v. Lumpkin

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BYRON RY BARKER, TDCJ #2182745, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

Civil Action No. H-21-3001

United States District Court, S.D. Texas, Houston Division

May 4, 2023

MEMORANDUM OPINION AND ORDER

SIM LAKE, SENIOR UNITED STATES DISTRICT JUDGE

Byron Ray Barker has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1), challenging a conviction from Harris County Texas, for continuous sexual abuse of a child. Director Bobby Lumpkin has filed Respondent Lumpkin's Answer with Brief in Support ("Respondent's Answer") (Docket Entry No. 14), arguing that Barker is not entitled to relief under the legal standard found in 28 U.S.C. § 2254(d). Barker has filed a Reply to Respondent's Answer ("Petitioner's Reply") (Docket Entry No. 18). After considering all of the pleadings, the state court record, and the applicable law, the court will dismiss this action for the reasons explained below.

I. Background

A jury in the 2 08th District Court of Harris County, Texas, found Barker guilty of engaging in continuous sexual abuse of a child in Cause No. 1463841 and sentenced him to 70 years' imprisonment.^[1] On direct appeal Barker argued that the trial court erred by admitting evidence of extraneous offenses involving another child during the guilt/innocence phase of the proceeding and that his conviction was not supported by legally sufficient proof.^[2] An intermediate court of appeals rejected those arguments and affirmed the conviction in an unpublished opinion after setting forth the following facts based on the evidence presented at trial:

[G.A.], the complainant in this case, lived with appellant who is her step-father, her mother, and her siblings: [T.B.], [L.B.], and [H.B.].[] [T.B.] and [L.B.] are [G.A.]'s step-siblings, i.e., appellant is their father, and [H.B.] is [G.A.] 's half-sister, i.e., appellant and [G.A.] 's mother are [H.B.] 's parents.

The three girls - [L.B.], [G.A.], and [H.B.] - slept together in a bedroom across the hall from appellant and [G.A.]'s mother. [T.B.] slept on an air mattress in the hall.

[G.A.] testified that, beginning when she was in first grade, appellant would come into the bedroom in the early morning hours and rub her legs, stomach area, hips, and along her panty line. He soon progressed to rubbing her vagina with his hand while groaning. Later, he began inserting his finger in her vagina, rubbing his penis on her vagina, and eventually penetrating her vagina with his penis.

The last sexual assault occurred in the early morning hours of February 15, 2015, when [G.A.] was in the fourth grade. On this occasion, appellant penetrated [G.A.] 's vagina with his fingers. During the assault, [G.A.] heard the bedroom door open. The next morning, [G.A.] 's mother asked her if "anything happened last night," and [G.A.] disclosed the assaults to her mother after [T.B.] had told [G.A.] to tell because it was going to be okay. Until then, [G.A.], [L.B.], and [H.B.] had a "pact" not to disclose the [assaults] because they were afraid to tell anyone for fear of hurting the rest of the family.

[T.B.] testified that on about five occasions he saw appellant go into the girls' room at night. He testified that he awoke on those occasions because appellant would either step on or bump the air mattress he was sleeping on in the hall. [T.B.] testified that he could see appellant go to [G.A.] 's bed and rub her back and "places I couldn't see.”

[L.B.] testified that she saw appellant stand on her bed to reach [G.A.], who was on the bunk above. She saw appellant "play" with [G.A.], but she could not see what appellant was actually doing.

Over objection, [L.B.] was permitted to testify that appellant also abused her "many" times. As an example, [L.B.] told of appellant touching her vagina while they were sitting on the couch under a blanket and watching a movie.

In contrast, [H.B.], the youngest girl, testified that she did not think she ever saw appellant in their room at night, and she did not think that she ever saw him do anything inappropriate to [G.A.]. [H.B.] was upset with [G.A.] for testifying against appellant.

Barker v. State, No. 01-18-00174-CR, 2019 WL 2220111, at *l (Tex. App. - Houston [1st Dist.] May 23, 2019, pet. ref d) (footnote omitted),^[3] cert. denied, Barker v. Texas, 140 s. Ct. 2686 (2020).

Barker now seeks a federal writ of habeas corpus under 28 U.S.C. § 2254, arguing that he is entitled to relief from his conviction for the following reasons:

1. He was denied effective assistance of counsel during his appeal when his attorney failed to raise the following issues:

(a) the trial court improperly admitted medical records found in State's Exhibits 2 and 3, which contained hearsay;

(b) ineffective assistance by trial counsel for failing to raise an adequate objection to State's Exhibits 2 and 3; and

(c) prosecutorial misconduct for the use of "perjured" testimony by G.A. and L.B.

2. He was denied effective assistance of counsel during trial when his defense counsel failed to:

(a) prepare for trial by conducting an independent investigation, researching the relevant law, or developing a trial strategy that blamed another party as the perpetrator;

(b) impeach the complaining witness and her sister with prior inconsistent statements; (c) call favorable witnesses Virginia Barker and Detective Silva;

(d) object to the admission of the complaining witness's statement;

(e) object to the admission of irrelevant evidence about jail phone calls; and

(f) preserve error by requesting a mistrial based on prosecutorial misconduct for eliciting hearsay.^[4]

The record reflects that these claims were among those raised previously by Barker in a state court Application for a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under [Texas] Code of Criminal Procedure, Article 11.07 ("State Habeas Application") .^[5] The Texas Court of Criminal Appeals summarily denied relief without a written order.^[6] The respondent argues that Barker's Petition should be dismissed because he is not entitled to relief under the legal standard that applies on federal habeas corpus review. ^[7]

II. Standard of Review

When the Texas Court of Criminal Appeals has denied a state habeas application without a written order that decision qualifies as an adjudication on the merits, which is subject to deference under the federal habeas corpus standard of review established by the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), 28 U.S.C. § 2254(d). See Anaya v. Lumpkin, 976 F.3d 545, 550 (5th Cir. 2020); see also Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2 o 0 0) ("Under Texas law a denial of relief by the Court of Criminal Appeals serves as a denial of relief on the merits of the claim."). For claims adjudicated on the merits a federal habeas corpus court may not grant relief unless the state court's conclusion "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States [.]" 28 U.S.C. § 2254(d) (1). Likewise, if a claim presents a question of fact, a petitioner cannot obtain federal habeas relief unless he shows that the state court's decision "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) (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 indistinguishable facts." Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015) (internal quotation marks and citations omitted).

To constitute an "unreasonable application of" clearly established federal law, a state court's holding "must be objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. Donald, 135 s. Ct. 1372, 1376 (2015) (quoting White v. Woodall, 134 s. Ct. 1697, 1702 (2014)). "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.'" Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011)).

The record that accompanies Barker's State Habeas Application reflects that the state did not file an answer, and there are no affidavits from Barker's attorneys or findings of fact and conclusions of law by the trial court.^[8] Nevertheless, the deferential AEDPA standard of review applies even where the state court fails to cite applicable Supreme Court precedent or explain its decision. See Early v. Packer, 123 S.Ct. 362, 365 (2002) (per curiam); see also Cullen v Pinholster, 131 s. Ct. 1388, 1402 (2011) ("Section 2254(d) applies even where there has been a summary denial."); Richter, 131 s. Ct. at 785 ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'"). Because a federal habeas corpus court only considers the reasonableness of the state court's ultimate decision, the AEDPA inquiry is not altered when the state court denies relief without a written opinion. See Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). In such circumstances, a federal habeas corpus court: "(1) assumes that the state court applied the proper 'clearly established Federal law'; and (2) then determines whether its...