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Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 1 of 27 PageID 605

IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF

FORT WORTH DIVISION

NORTHERN DISTRICT OF TEXAS

u.s. DISTRICT COURT
:/ <;'>", FIIJED

EO~r5& 2 02-~1-13--'

CLERK, U.S. DISTRICT COURT

81__-::---;-
Deputy

_

No. 4:12-CV-854-A

DENNIS MICHAEL GOSDIN,

Petitioner,

v.

WILLIAM STEPHENS, Director,l
Texas Department of Criminal
Justice, Correctional
Institutions Division,

Respondent.

§

§

§
§
§
§
§
§
§
§
§
§

MEMORANDUM OPINION

and

ORDER

This is a petition for writ of habeas corpus pursuant to 28

U.S.C.

§ 2254 filed by petitioner, Dennis Michael Gosdin,

a state

prisoner currently incarcerated in Iowa Park, Texas, against

William Stephens, Director of the Texas Department of Criminal

Justice, Correctional Institutions Division (TDCJ),

respondent.

After having considered the pleadings, state court records, and

relief sought by petitioner,

the court has concluded that the

petition should be denied.

lEffective June 1, 2013, William Stephens succeeded Rick

Thaler as the Director of the Correctional Institutions Division
of the Texas Department of Criminal Justice.
Pursuant to Rule 25
of the Federal Rules of Civil Procedure, Director Stephens "is
automatically substituted as a party."

FED. R. CIV. P. 25(d).

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 2 of 27 PageID 606

I.

Procedural History

In December 2007 petitioner was indicted on two counts of

aggravated sexual assault with a deadly weapon,

a knife,

in the

Criminal District Court Number Four of Tarrant County, Texas,

Case No. 1083422D.

(SHR at 90 2)

The indictment also included a

repeat offender notice, alleging a prior 1998 felony conviction

for sexual assault in Tarrant County.

(SHR at 90)

On July 30,

2008,

a jury found petitioner guilty on both counts, and the

trial court found the repeat offender allegation true and

sentenced petitioner to life imprisonment for each offense.

(SHR

at 92-97) Petitioner appealed his convictions, but

the Second

District Court of Appeals of Texas affirmed the trial court's

judgments, and the Texas Court of Criminal Appeals refused his

petition for discretionary review.

(SHR at 98-104) Gosdin v.

State, PDR No. 1485-09. Petitioner also sought postconviction

state habeas corpus relief,

to no avail.

(SHR at cover)

The state appellate court set forth a brief factual

background of the case as follows:

The complainant, "Erica"

(a pseudonym),

is a

prostitute.
off the street in his pick-up truck, drove her to a

She testified that Appellant picked her up

2"SHR" refers to the state court record of petitioner's

state habeas proceeding in WR-76,293-02.

2

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 3 of 27 PageID 607

She testified that Appellant

leaned

a long one," "a huge knife," with "spikes" on

secluded location, and - when she insisted that he pay
her "before anything else went on" - pulled out a
knife. Erica described the knife as "[l]ike a Bowie
knife,
the back edge.
toward her with the knife in a threatening manner,
pointed the knife at her stomach, and ordered her to
undress.
She said that she believed the knife could
cause serious bodily injury or death,
that Appellant
had the present ability to cause serious bodily injury
or death, and that she was afraid Appellant was going
to kill her. The knife was admitted into evidence and
shown to the jury, and a photograph of the knife
appears in the record.
three-quarter inches long,
spine, and "knuckles" on the grip.

a barbed or deeply serrated

The knife has a blade seven and

Appellant forced Erica to perform oral sex on him;

then he penetrated her female sexual organ with his
penis. Afterwards, Appellant allowed Erica to get out
of his truck.
and reported the assault to the police.

She memorized his license plate number

(SHR at 99)

The record also reflects that Erica identified petitioner at

trial and in a photo lineup shortly after the attack as the

person who assaulted her.

(RR, vol. 3, at 59-60, 136-38)

She

described petitioner's truck, his tattoos, pictures of which were

introduced into evidence, specific questions he asked her during

the assault, and the fact

that he did not use a condom.

(RR,

vol. 3, at 39-40, 50-51, 188)

She also testified that petitioner

took two pictures with a pink cell phone of his penis inserted

into her vagina, and that he ejaculated on the floorboard of the

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Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 4 of 27 PageID 608

truck.

(RR, vol. 3, at 50-52)

Petitioner's wife, Pamela McGee,

testified that there was

one picture on her daughter's pink cell phone, which petitioner

was using at the time, of a penis inserted into a vagina,

that

she assumed the photo was of the two of them having sex, and that

she deleted the photo, among others, before speaking to the

police.

(RR, vol. 3, at 118-20)

Detective Linda Hill testified that McGee told her she was

unaware of petitioner ever taking pictures of the two of them

having sex and that the deleted photos were not retrievable.

(RR, vol. 3, at 144-45)

A search of petitioner's truck, pursuant

to a search warrant obtained the next day,

revealed a club and

two knives, one of which was identical to the knife described by

Erica.

(RR, vol. 3, 149-54)

A "black light" was also used in

the truck,

revealing bodily fluids on the passenger side seat

cover and floorboard.

(RR, vol. 3, at 155-56)

The sexual assault nurse examiner testified that Erica

described the assault to her, which matched Erica's own version

of events at trial, and that there was no physical evidence of

injury, which was not uncommon in these circumstances.

(RR, vol.

3, at 173-80)

Petitioner chose not to testify, having been advised by

4

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 5 of 27 PageID 609

trial counsel that the state would be able to impeach him with

his prior conviction for sexual assault,

the specific

circumstances of his prior conviction -

that he forced his ex-

wife to perform fellatio,

that he took photographs of her during

this sexual assault, and that he threatened to kill her, and,

depending on his testimony, accusations by two other prostitutes

that he attempted to sexually assault them.

(SHR at 59) Nor did

defense counsel call any witnesses or present evidence on

petitioner's behalf.

(RR, vol. 3, at 193-95)

II.

Issues

Petitioner raises five grounds challenging his convictions:

(1)

Petitioner was denied a fair trial by the state's
dilution of the presumption of innocence;

(2) Trial counsel was ineffective by failing to

suppress evidence having a causal connection to
petitioner's unlawfully seized vehicle;

(3) Trial counsel was ineffective by failing to

determine whether individual veniremembers would
be fair and impartial
testifying;

to petitioner not

(4) Trial counsel was ineffective by failing to

present a defense; and

(5) Trial counsel's cumulative errors amount to

ineffective assistance.

(Pet. at 7-9; Pet'r Mem. at 6-24)

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Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 6 of 27 PageID 610

III. Rule 5 Statement

Respondent asserts that petitioner's first claim is

procedurally barred but that the petition is not otherwise barred

by limitations or subject to the successive petition bar.

(Resp't Ans. at 4)

IV. Discussion

Legal Standard for Granting Habeas Corpus Relief

Under 28 U.S.C.

§ 2254(d),

a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a state court

shall not be granted with respect to any claim that was

adjudicated on the merits in state court proceedings unless he

shows that the prior adjudication:

(1)

resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established federal

law, or (2)

resulted in a decision

that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court.

28 U.S.C.

§

2254(d).

A decision is contrary to clearly established federal

law if the state court arrives at a conclusion opposite to that

reached by the Supreme Court of the United States on a question

of law or if the state court decides a case differently than the

Supreme Court has on a set of materially indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v.

6

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Johnson, 210 F.3d 481, 485 (5 th Cir. 2000).

A state court

decision will be an unreasonable application of clearly

established federal

law if it correctly identifies the applicable

rule but applies it unreasonably to the facts of the case.

Williams, 529 U.S. at 407-08.

The statute further requires that federal courts give great

deference to a state court's factual findings. Hill, 210 F.3d at

485.

Section 2254(e) (1) provides that a determination of a

factual

issue made by a state court shall be presumed to be

correct.

The applicant has the burden of rebutting the

presumption of correctness by clear and convincing evidence.

28

U.S.C.

§ 2254(e) (1). Typically, when the Texas Court of Criminal

Appeals denies relief in a state habeas corpus application

without written order, it is an adjudication on the merits.

Singleton v. Johnson, 178 F.3d 381, 384 (5 th Cir. 1999); Ex parte

Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).

In this case,

the state habeas court entered findings of

fact, which were adopted by the Texas Court of Criminal Appeals.

(SHR at cover, 54-65, 89)

Petitioner has failed to rebut

the

state court's factual findings by clear and convincing evidence;

thus,

this court defers to those findings in addressing

petitioner's claims below.

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Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 8 of 27 PageID 612

(1) Fair Trial

In his first ground, petitioner claims the state "diluted"

the presumption of innocence by:

the victim and

telling the venire panel that there are two

(1)
witnesses to a sexual assault -
perpetrator - but since the defendant had a right not
to testify then the jury would only hear from the
victim;
"the victim";
person" convicted and sent to prison; and (4)
consenting to "political correctness" in a criminal
trial.

repeatedly referring to the complainant as

(2)

(3)

linking the petitioner to "every

(Pet'r Mem. at 7)

Petitioner raised this claim for the first time in his

postconviction state application for writ of habeas corpus, and

the state habeas court expressly found the claim to be

procedurally barred because the claim was not raised on direct

appeal and because jury selection complaints are not cognizable

on writ of habeas corpus as a matter of state law.

(SHR at 64-

65)

Under the procedural default doctrine,

a federal court may

not consider a state prisoner's federal habeas claim when the

last state court to consider the claim expressly and

unambiguously based its denial of relief on an independent and

adequate state procedural default.

See Coleman v. Thompson, 501

U.s. 722, 729,

(1991); Johnson v. Puckett, 176 F.3d 809, 823 (5 th

8

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 9 of 27 PageID 613

Cir. 1999); Fisher v. State l 169 F.3d 295 1 300 (5 th Cir. 1999).

The habeas court clearly relied upon firmly established and

regularly followed state procedural rules to recommend denial of

petitioner1s claim l which represent an adequate state procedural

bar to federal habeas review.

Ex parte Gardner 1 959 S.W.2d 189 1

199 (Tex. Crim. App. 1996)

(holding Fifth Amendment claim is

procedurally defaulted because not raised on direct appeal); Ex

parte Banks 1 769 S.W.2d 539 1 540 (Tex. Crim. App. 1989)

(holding

"the Great Writ should not be used to litigate matters which

should have been raised on appeal"). Therefore 1 absent a showing

of cause and prejudice or a miscarriage of justice l

such showing

not having been demonstrated l petitioner1s claim raised for the

first time in his state habeas application is procedurally barred

from this court/s review.

(2)

-

(5)

Ineffective Assistance of Counsel

Petitioner asserts that his trial counsel was ineffective by

failing to suppress evidence having a "causal connection" to

petitioner1s unlawfully seized vehicle l

to determine whether

individual veniremembers would be fair and impartial

to him not

testifying l and to present a defense.

He also asserts that

counsel/s cumulative errors amounted to ineffective assistance.

(Pet. at 7-9; Pet/r Mem. at 8-24)

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Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 10 of 27 PageID 614

A criminal defendant has a constitutional right to the

effective assistance of counsel at trial. U.S. CONST. amend. VI,

XlVi Evitts v. Lucey, 469 U.S. 387, 393-95 (1985) i Strickland v.

Washington, 466 U.S. 668, 688 (1984).

An ineffective assistance

claim is governed by the familiar standard set forth in

Strickland v. Washington.

466 U.S. at 668.

To establish

ineffective assistance of counsel a petitioner must show (1)

that

counsel's performance fell below an objective standard of

reasonableness, and (2)

that but for counsel's deficient

performance the result of the proceeding would have been

different.

Strickland, 466 U.S. at 688. Both prongs of the

Strickland test must be met

to demonstrate ineffective

assistance.

Id. at 687, 697.

Further,

a court must

indulge a strong presumption that

counsel's conduct fell within the wide range of reasonable

professional assistance or sound trial strategy.

Id. at 668,

688-89.

Judicial scrutiny of counsel's performance must be

highly deferential and every effort must be made to eliminate the

distorting effects of hindsight.

Id. at 689.

Where the state courts have applied the Strickland attorney(cid:173)

performance standard to factual findings,

a federal court will

defer to the state courts' determination unless it appears the

10

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decision was contrary to or involved an unreasonable application

of Strickland, or resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

in the state court proceedings. Bell v. Cone, 535 U.S. 685, 698-

99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82

(5 th Cir. 2002).

Petitioner was represented at trial by Lex Johnston as lead

counsel and Candace Taylor as second chair.

(SHR at 56) First,

petitioner claims counsel was ineffective by failing to suppress

evidence,

the Bowie knife, "causally connected" to his seized

vehicle.

(Pet. at 7; Pet'r Mem. at 9-15) According to

petitioner,

the police lacked probable cause for a warrantless

search and seizure of his truck while legally parked in his

driveway, without any indication that his truck was recently

driven or involved in a crime.

He urges that he made no furtive

gestures and that it is not uncommom for people to give the wrong

license plate number when reporting a crime or for prostitutes to

experience "theft of services," whereas "it is 'very uncommon'

for prostitutes to report sexual assaults."

(Pet'r Mem. at 12)

The state habeas court conducted a hearing by affidavit

regarding petitioner's ineffective assistance claims. Counsel

responded to this allegation as follows:

I did not seek to have the evidence, specifically,

11

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the bowie-style knife that was found in the driver's
door pocket of Mr. Gosdin's truck, suppressed because I
did not believe that there was a legally cognizable
argument FOR having it suppressed.
The vehicle was
seized and placed in a secure facility for safe-keeping
until a warrant was obtained to search the vehicle.
Texas Rules of Professional Conduct, Rule 3.01 states,
"[a]
lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless the
lawyer reasonably believes that there is a basis for
doing so that is NOT frivolous."
I rely upon a long
number of cases,
SW2d 234 (Tex. Crim. App. 1975) and Carroll v United
States, 267 U.S. 132 (1925) and their progeny as
guidance that says that a vehicle can be held, but not
searched, until a lawfully obtained search warrant,
signed by a neutral magistrate, can be obtained, which
is what happened in this particular case.

including, Maldonado v. State, 528

Additionally,

I consulted with Mr. Patrick Curran,
the attorney originally representing Mr. Gosdin and who
filed the pre-trial motions that I adopted in this
matter, as well as Mr. Steven G. King,
firm that Mr. Gosdin ultimately hired and my boss at
the time, concerning the suppression issue. Both
attorneys concurred with my opinion that no legal
reason to suppress the evidence existed.

the owner of the

(SHR at 43)

(emphasis in original)

The state habeas court entered findings of fact consistent

with counsel's affidavit, and applying the Strickland standard,

concluded that counsel's decision not to seek suppression of

admissible evidence was reasonable.

(SHR at 59) Deferring to

the state court's findings, petitioner has failed to demonstrate

the state courts unreasonably applied Strickland.

28 U.S.C.

§

2254(d). At trial, Fort Worth Police Officer Garlinda Hempstead

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testified that she was on patrol on the day in question and

answered the dispatch regarding the offense,

a description of the

truck,

the license plate number, and petitioner's name and

address.

(RR, vol. 3, at 94-95)

She proceeded to the address

given, where she located petitioner's truck in a driveway several

houses down.

(RR, vol. 3, at 94-95)

She waited for backup

assistance and began setting up a "perimeter" around the house.

(RR, vol. 3, at 97-98) After additional officers arrived,

she

approached the truck and felt its hood, which was hot,

indicating

to her that the truck had recently been driven.

(RR, vol. 3, at

99) At that point,

the garage door began to open, and petitioner

was standing in the doorway.

(RR, vol. 3, at 99)

She drew her

weapon and asked petitioner to step outside and talk to them.

(RR, vol. 3, at 100)

For "everybody's safety," she had

petitioner handcuffed and advised him that he was "being detained

for investigation and, at this time,

[was] not under arrest."

(RR, vol. 3, at 100) Petitioner was thereafter transported to

the police station. Officer Hempstead stayed at the residence to

wait for a tow truck to take petitioner's truck to the Fort Worth

auto pound, where it was secured in a bay with a "hold" placed on

it for the "detective's office."

(RR, vol. 3, at 101-03)

On

cross-examination, Officer Hempstead agreed that it was common

13

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for car hoods to be hot in September,

that she had not seen

petitioner inside the truck at any time prior to placing him

under arrest,

that the truck was legally parked, and that she had

no search warrant for the vehicle when she ordered it to be

towed.

(RR, vol. 3, at 103-04)

Petitioner has not demonstrated that the above circumstances

provided a valid basis for a motion to suppress,

that counsel was

deficient for failing to file such a motion, or that such a

motion to suppress would have been successful.

Strickland, 466

u.S. at 694. Contrary to petitioner's assertion,

the police were

entitled not only to seize petitioner's truck but to search the

truck after it had been impounded without a warrant, although a

search warrant was obtained prior to the search.

(Pet'r Mem. at

12-14)

The police had reason to believe the truck had been used

in the commission of a crime and that it could contain evidence

of the crime.

Further,

there was a likelihood that petitioner's

wife or other third party would move the truck or tamper with or

destroy evidence in truck before a warrant could be obtained if

left unattended.

Chambers v. Maroney, 399 u.S. 42, 52 (1970) i

Carroll v. United States, 267 U.S. 132, 149 (1925).

See also

Carlton v. Estelle, 480 F.2d 759, 764 (5 th Cir.), cert denied,

14

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414 U.S. 1043 (1973)

(in a rape case, police could conduct a

warrantless search or make a warrantless seizure of a stationary

car) .

Second, petitioner claims trial counsel was ineffective by

failing to determine whether individual veniremembers would be

fair and impartial to petitioner if he did not testify. Counsel

responded to this allegation as follows:

As the Court well knows,

I have, on many

In this particular voir dire,

occasions, asked each and every venireman in panels,
questions in order to find a reason to strike some for
cause.
I did not, based
upon my experience in trying cases of this magnitude,
believe that I would get any additional veniremen to
commit
Ms. McIntire,
representing the State in this matter had asked the
question about whether or not
a bias against Mr. Gosdin before I asked them.

themselves on the issue of the 5 th Amendment.

the Assistant District Attorney

the veniremen would have

Mr. Gosdin's reliance on the purported statistic

that I only individually questioned 9% of

that the fact
the panel on this matter would lead to a reasonable
probability existing that some of the "selected" jurors
would have a bias against Mr. Gosdin based upon his
decision to not testify,
After the trial,
stated that their bias against Mr. Gosdin was not based
upon his decision to not testify, but on his appearance
and the overwhelming evidence against him as presented
by the District Attorney.

the selected jurors overwhelmingly

in my opinion, farcical.

is,

(SHR at 44)

The state habeas court entered findings of fact consistent

with counsel's affidavit, and applying the Strickland standard,

15

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concluded that counsel's decision not to re-ask the veniremembers

was reasonable and that petitioner provided no evidentiary basis

to establish juror bias on the basis that he did not testify.

(SHR at 59-60, 63) Deferring to the state court's findings,

petitioner has failed to demonstrate the state courts

unreasonably applied Strickland.

28 U.S.C.

§ 2254(d).

Petitioner concedes that the state prosecutor addressed the

issue of his Fifth Amendment right not

to testify with the venire

panel, and the record supports this fact.

(RR, vol. 2, at 32-42)

Additionally,

the trial court admonished the prospective jurors

regarding a defendant's right to remain silent before voir dire:

If the defendant does not choose to

THE COURT:
testify, you may not consider that fact as evidence of
guilt nor may you,
in any way allude to that fact.
that instruction if it's given to you in the Court's
charge?

in your deliberations, comment on or

Can anyone not follow

(No response.)

THE COURT:

I assume you can.

(RR, vol. 2, at 13)

Finally, petitioner's counsel also queried

the panel on the issue, although he did not question each

veniremember individually, and spoke with jurors after trial who

confirmed that their decision was not based on the fact that

petitioner did not testify.

(RR, vol. 2, at 106-10)

16

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Juror bias is present when the juror's "views would prevent

or sUbstantially impair the performance of his duties as a juror

in accordance with his instructions and his oath." Soria v.

Johnson, 207 F. 3d 232, 242 (5 th Cir.)

(quoting Wainwright v.

Witt, 469 U.S. 412, 424 (1985)). Bias may be either actual or

implied.

To demonstrate actual bias, "admission or factual

proof" of bias must be presented. United States v. Bishop, 264

F.3d 535, 554 (5 th Cir. 2001). Petitioner offers no evidence of

actual bias nor has he presented the type of evidence upon which

bias may be presumed.

See Solis v. Cockrell, 342 F.3d 392,

396-99 (5th Cir.2003)

(discussing limited scenarios in which

implied bias might exist). Mere speculation of juror bias does

not raise a constitutional issue in a habeas case.

Ross v.

Estelle, 694 F.2d 1008, 1011 (5 ili Cir. 1983).

Third, petitioner claims counsel was ineffective by failing

to present a defense.

(Pet'r Mem. at 18-24) Specifically,

petitioner claims counsel was ineffective by informing the jury

during his opening statement that "he expected to prove that

complainant's 'boyfriend [Andre C.] was upset that she got

jipped

out of $25 and that's why we're here today[,]" but

then failed to

present witnesses or adequately cross-examine the victim

concerning the matter.

(Pet. at 8; Pet'r Mem. at 18, 20)

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Petitioner also claims counsel was ineffective by failing to

reveal

the ~real world of prostitution," through expert

testimony

or ~by confrontation or compulsory process of the complaint's

boyfriend [and pimp, Andre C.] ," to help the jury ~to not only

understand the role of a prostitute's 'boyfriend' but also that a

prostitute has reason to fear being assaulted by her 'boyfriend'

if she doesn't

turn-over her money and that that fear ~would

explain her motive for making a false allegation of rape or

robbery."

(Pet'r Mem. at 18-19, 22)

Counsel responded to this

allegation as follows:

First, Mr. Gosdin's statement that I

told the jury

that ~I expected to prove" anything is a pure fallacy.
I did not state that I expected to ~prove" anything.
did, however, state in my opening statement that ~the
evidence is going to show
that her boyfriend was
upset that she got

jipped out of $25 .

"

.

I

Because I have been ordered to supply an affidavit

in response to this writ and because Texas Rules of
Professional Conduct, Rule 1.05(c) state that a ~lawyer
may reveal confidential information.
a defense to a
based upon conduct
representation of the client," the following
information that would have remained confidential is
now being disclosed.

the lawyer
involving the client or the

claim against

to establish

.

.

From shortly after Mr. Gosdin's arrest on or about

September 12, 2007 until he contracted with The Law
Firm of Steven G. King, PC (hereinafter The Firm) on
March 31, 2008, Mr. Gosdin was represented by Patrick
Curran.
On March 31, 2008, Mr. Gosdin contracted The
Firm in order to represent him during the trial on this

18

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He stated that he

I was assigned as primary trial counsel on
in fact,

matter.
that date. Mr. Gosdin stated that he did,
have sexual relations with the complainant in his Ford
Ranger pickup on September 12, 2007.
drove through the area looking for a prostitute and
that he saw the complainant, agreed to pay her $25 for
fellatio (as he termed it,
a "blowjob"), drove her to
the end of a dead end street, and refused to pay her.
He stated that he did not assault her and never showed
her a knife, although she may have seen the handle of
the knife in the door panel while she had her head in
his lap. At
the time that we were hired, Mr. Gosdin
had already reached the Court's trial docket and was
scheduled for his first trial appearance on May 12,
2008.
Gosdin never changed his story about
insisted on a trial.

the course of my representation, Mr.
the incident and

Throughout

Based upon my reading of the police reports and

I believed

Mr. Gosdin's confidential admissions to me,
that the only defense that was possible was to muddy
the waters, so to say, and try to convince the jury
that the complainant was just upset about not being
paid. Mr. Gosdin was informed of all of the evidence
that the District Attorney had against him and was
advised of the benefits of hiring a private
investigator as well as hiring Eric Holden to conduct a
polygraph examination. Mr. Gosdin disregarded this
advice and provided nothing more than his word about
the events.

Mr. Gosdin believes that I should have subpoenaed

a couple of problems with this. First,

to testify on his behalf, but there were,

Andre c.
my opinion,
hade no information on the person that summoned help
for the complainant.
Police responded to a "suspicious
person" and found the complainant being treated by fire
department personnel.
that we learned that Andre C. existed, but there was no
evidence that he was material to the case at all.
complainant testified that Andre C. was, at the time,
her boyfriend, but provided nothing to indicate that he
was a pimp or knew anything about this matter.

It was only during the trial

The

in
I

The

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Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 20 of 27 PageID 624

to

He also

the

tend to incriminate himself.

is that I would have been forced to subpoena

second problem that I would have had in subpoenaing
Andre C.
him to testify that he was a criminal in order to
achieve the result that Mr. Gosdin desired. Mr. Gosdin
believes that I should have subpoenaed Andre C.
testify that he was the complainant's pimp and that he
was upset that he was not getting paid for the blow job
that Mr. Gosdin received without paying.
believes that Andre C. could testify about
complainant's character for truthfulness and her drug
use. Unfortunately for Mr. Gosdin,
I am bound by the
Texas Rules of Evidence and I cannot call a witness for
the purpose of impeaching him, which is, basically,
what Mr. Gosdin indicates he wanted me to do.
also not call a witness when I know that he will exert
his rights under the 5 th Amendment and refuse to answer
any questions that might
When I discovered Andre C.'s true identity (Andre Seay)
on July 28, 2008 (after trial had begun),
found that
he had been arrested on a variety of charges,
the felony offenses of possession of a controlled
substance, delivery of a controlled substance, as well
as failure to identify.
represented by an attorney and that he was in custody
at the Tarrant County Jail. While I cannot remember
his attorney's name,
attorney handling his cases at that time and requesting
permission to speak with him.
not have permission to interview him in the jail about
testifying and that if I subpoenaed him to testify, he
would be advised to plead the fifth.
I will not put a
witness on the stand without knowing what he or she is
going to say.
his or her testimony,
testimony will help or hurt the defense. Compelling
prostitution is a 3 rd degree felony and I have
absolutely no doubt that Andre Seay would have never
testified in any way,
Gosdin. Additionally,
his testimony.
credible for the jury to be able to imagine the worst
when it came to the "mysterious Andre C."
tactical decision that I made in the trial to limit the

I believed that it would be more

If I cannot

interview a witness prior to

I did not believe that I needed

let alone favorably for Mr.

I

including

I do not know whether the

I

found that he was

I

remember speaking to the

I was told that I did

I can

It was a

20

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 21 of 27 PageID 625

testimony presented to the jury while leaving the
option open that somehow this was all a matter of a
pimp being upset about not getting his money.

Mr. Gosdin believes that I should have asked more

I believe that I got my

questions of witnesses, but
point across as well as anyone could have with a small
number of questions.
could have asked the complainant more questions about
her version of the story, but after she admitted that
she "shot up" heroin "last night" before she came to
testify in the morning,
I felt that the jury may not
find anything else as damning in her testimony.

I believe that I

For example,

(SHR at 45-46)

Mr. Gosdin believes that I was ineffective by not
determining whether I needed to hire an expert witness
on the subject of prostitution to assist me in t~e
preparation and trial of this matter. Although Mr.
Gosdin now has plenty of time to look up articles about
prostitution and the exploitation of women, his
accusation that I was ineffective because I did not
present evidence for the jury to "understand the
subculture of prostitution," which led to the State's
"free rein to mislead the jurors with myths,
misconceptions, and stereotypes about prostitutes," is
without merit,
in my opinion. Other than making broad
statements about
any specificity what an expert would have actually
stated or how that testimony would have aided his case.

the subject, he does not state with

I have actually spoken to a large number of women

involved in a variety to [sic] prostitution

(and men)
activities,
including, street walkers, dancers, and
people in the massage or body rub business. While I
would not be able to be a testifying expert in Mr.
Gosdin's case,
industry, especially the industry in the Tarrant County
area,
Gosdin hire a supposed expert in the area.

that it would have been unnecessary to have Mr.

I have enough knowledge about

the

It was a tactical decision to not dwell

too much

21

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 22 of 27 PageID 626

on the fact that the complainant was involved in the
prostitution business and press the issues in front of
the jury.
angrier with Mr. Gosdin if I had done that.

I believed that the jury would have been

(SHR at 44)

The state habeas court entered findings of fact consistent

with counsel's affidavit and, applying the Strickland standard,

concluded that counsel's decisions were reasonable trial

strategy.

(SHR at 56-58, 60) Deferring to the state court's

findings, petitioner has failed to demonstrate the state courts

unreasonably applied Strickland.

28 U.S.C.

§ 2254(d).

As noted by the state court, "strategic choices made after

thorough investigation of law and facts relevant

to plausible

options are virtually unchallengeable."

Strickland, 466 u.s. at

690.

"'A conscious and informed decision on trial tactics and

strategy cannot be the basis for constitutionally ineffective

assistance of counsel unless it is so ill chosen that it

permeates the entire trial with obvious unfairness.'" United

States v. Jones, 287 F.3d 325, 331 (5 th Cir. 2002)

(quoting

Garland v. Maggio, 717 F.2d 199, 206 (5 th Cir. 1983)).

The

strategy adopted by counsel faced with the facts of this case was

not so ill-chosen as to render petitioner's trial unfair.

Counsel's decision to base his defense on the proposition that

22

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 23 of 27 PageID 627

the complainant was a prostitute and heroin user and was

consciously lying because she did not get paid for services

rendered was reasonable.

Further, even if Andre C. had been

subpoenaed, it would have been imprudent of counsel to call him

as a witness without first interviewing him and it is highly

likely that he would have asserted his Fifth Amendment right on

the stand. Nor does the court see how expert

testimony

concerning the "subculture" of prostitution would have altered

the result in this case given the overwhelming evidence of

petitioner's guilt.

Lastly, petitioner claims counsel's cumulative errors amount

to ineffective assistance of counsel.

(Pet. at 9) Counsel

responded to this allegation as follows:

Had Mr. Gosdin listened to my advice, he would be

well on his way to having completed his term of
imprisonment. Mr. Gosdin was offered 15 years in
exchange for a plea of guilty and he refused to
entertain that offer or make any counter offers. Mr.
Gosdin refused my advice to hire a private investigator
and refused my advice to hire a polygraph examiner.
Mr. Gosdin continually maintained that money was not
the issue, even when I
become indigent,
funds to hire an investigator. Mr. Gosdin refused to
let his hair grow over the tattoos on the top of his
head and did not cover them with makeup or clothing to
prevent

informed him that if he had
I could come to the Court to seek

the jury from being able to see them.

As for the selection of the jury in this matter,
provided Mr. Gosdin with a seating chart and a pen in

I

23

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the end of voir
the peremptory strikes were based upon a full

order for him to make notes of anything that he
observed during the voir dire. At
dire,
the strikes and upon the approval of
discussion about
Mr. Gosdin. Although I do not have a specific memory
of it,
portion of the Court's record,
signature is affixed to the peremptory strike list
provided by the Court, as evidence that Mr. Gosdin
agreed to the strikes used in his defense.

I believe that you will find,

that Mr. Gosdin's

in the sealed

I

that the complainant was able to

including the jagged top edge

It is hard to get a

in order to win,

I can only try a case with what

told him that it was going to be difficult to

He was advised that the case would be very
I would have

I am given and Mr.
Gosdin did not present me with a case that should have
been tried.
difficult to win and that
to try to convince the jury that this was a prostitute
that was just upset about getting ripped off for a blow
job.
do, especially because a prostitute generally does not
get fully undressed to give someone a blow job inside
of a pickup truck.
overlook the fact
fully describe the knife,
of the blade if the knife was inside a sheath and in
the driver's door pocket.
disregard the fact
Mr. Gosdin took of
assaulting her and described the cell phone and that
Mr. Gosdin's wife was in possession of a similar cell
phone and testified that she deleted a photograph of a
penis inside a vagina that she didn't remember being
taken of her vagina shortly before the police came to
process the phone.

jury to
that the complainant testified that
[sic] picture while he was sexually

It is also difficult for a jury to

The reports that I

received from actual

jurors who

listened to the case were that Mr. Gosdin was found
guilty because of the extremely strong evidence against
him and that the fact
absolutely noting to do with it.

that he did not testify had

Had the District Attorney been fully prepared and

made sure that DNA testing of the bodily fluids found
during the rape exam of the complainant was completed

24

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 25 of 27 PageID 629

before trial,
have been even more damning.

the evidence against Mr. Gosdin would

The United States and Texas Constitutions

the right to a

jury trial.

Even

guarantee a defendant
though this is a right afforded to all defendants, it
is not necessarily a right that should be exercised by
all defendants. Mr. Gosdin chose to exercise his right
to have a trial and it was my duty to make sure that
the jury did not convict unless they were convinced
beyond a reasonable doubt as to his guilt.
evidence that the District Attorney legally presented
to the jury was,
show any reasonable jury that Dennis Michael Gosdin
was,
a deadly weapon.
myself during this trial.

in fact, guilty of aggravated sexual assault with

I have no doubt about how I conducted

in my opinion, plenty sufficient to

The

(SHR at 47-48)

The state habeas court entered findings of fact consistent

with counsel's affidavit-i.e., counsel employed reasonable trial

tactics and strategy, properly did not seek to suppress

admissible evidence,

reasonably conducted voir dire,

investigated

the case,

fully prepared for petitioner's trial, and

strategically decided not

to call witnesses whose testimony would

hurt

the defense, and applying the Strickland standard, concluded

counsel provided adequate representation and the evidence

undercut any likelihood that the outcome of petitioner's case

would have been different with another counsel of if counsel had

represented him in another manner.

(SHR at 58, 60, 63)

Deferring to the state court's findings, petitioner has failed to

25

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 26 of 27 PageID 630

demonstrate the state courts unreasonably applied Strickland.

28

U.S.C.

§ 2254 (d) .

Petitioner presents this argument apparently in the event

that the other errors which he alleges fail to rise to the level

of ineffective assistance of counsel. Petitioner provides no

legal basis for this argument in a conclusory briefing.

(Pet. at

9)

Further,

there is no precedent supporting the idea that a

series of "errors" that fail to meet

the standard of objectively

unreasonable can somehow cumulate to meet

the high burden set

forth in Strickland. United States v. Thomas, 724 F.3d 632, No.

12-60707, slip op.

(5 th Cir. Aug. 1, 2013)

(citing Strickland,

466 U.S. at 689 ("[T]he purpose of the effective assistance

guarantee of the Sixth Amendment is not to improve the quality of

legal representation .

The purpose is simply to ensure

that criminal defendants receive a fair trial.")).

For the reasons discussed herein,

The court ORDERS the petition of petitioner for a writ of

habeas corpus pursuant to 28 U.S.C.

§ 2254 be, and is hereby,

denied.

Pursuant to Rule 22(b) of the Federal Rules of Appellate

Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases

in the United States District Court, and 28 U.S.C.

§ 2253(c),

for

26

Case 4:12-cv-00854-A Document 16 Filed 09/20/13 Page 27 of 27 PageID 631

the reasons discussed herein,

the court further ORDERS that a

certificate of appealability be, and is hereby, denied, as

petitioner has not made a substantial showing of the denial of a

constitutional right.

SIGNED September --""r7:'-----_O_,

2 013 .

27