Baughman v. Lumpkin

               UNITED STATES DISTRICT COURT             February 15, 2023
                SOUTHERN DISTRICT OF TEXAS              Nathan Ochsner, Clerk
                      HOUSTON DIVISION                                   
                               §                                         
Steve Kurt Baughman,           §                                         
                               §                                         
         Petitioner,           §                                         
                               §      Case No. 4:21-cv-03016             
v.                             §                                         
                               §                                         
Bobby Lumpkin, Director, Texas  §                                        
Department of Criminal Justice,  §                                       
Correctional Institutions Division  §                                    
                               §                                         
         Respondent.           §                                         

           MEMORANDUM AND RECOMMENDATION                                 

    Before the Court are Petitioner Steve Baughman’s petition for a writ of 
habeas  corpus  pursuant  to  28  U.S.C.  §  2254(d)  and  Respondent  Bobby 
Lumpkin’s (“the Director”) motion for summary judgment.  Dkt. 1; Dkt. 14.  
After carefully reviewing the petition, Baughman’s supporting memorandum, 
Dkt. 2, the Director’s motion, Baughman’s response, Dkt. 26, the record, and 
the appliable law, it is recommended that the Director’s motion for summary 
judgment be granted and that Baughman’s petition be denied.  It is further 
recommended that the Court decline to hold an evidentiary hearing and deny 
a certificate of appealability.                                           
                         Background                                      

    On April 2, 2014, Kurt Baughman was arrested for aggravated assault  
with a deadly weapon and felon in possession of a firearm.  Dkt. 10-1 at 13.  
The indictment charged him with striking his ex-girlfriend, Machell Spear, 
with a firearm and threatening to kill Ms. Spear and her son, John Spear.  Id. 
at 25.  The state district court appointed an attorney to serve as Baughman’s 

counsel.  Id. at 21.  But Baughman eventually requested a new attorney and 
filed a grievance against his original one.  Id. at 28.  The court then appointed 
Baughman a second attorney, Ricardo Gonzalez.  Id. at 29-30.              
    Baughman  grew  frustrated  with  Mr.  Gonzalez’s  strategy  and  later 

moved to replace Mr. Gonzalez with yet another court-appointed attorney.  See 
id. at 57-58.  After filing a bar complaint against Mr. Gonzalez, see id. at 87, 
Baughman  filed  a  flurry  of  pro  se  motions,  complaints,  and  petitions  for 
mandamus relief.  See id. at 90-588.                                      

    The trial court appointed Baughman a third attorney, Terrence Gaiser.  
Id. at 591 (Aug. 15, 2017 appointment order).  Mr. Gaiser promptly moved to 
have an investigator appointed.  Id. at 592-93.  Although the record does not 
indicate whether the court granted Gaiser’s request, it includes numerous 

documents  that  either  Gaiser  or  his  investigator  had  procured—including 
Baughman’s medical records, Dkts. 10-20–10-38.                            
    Nevertheless, Baughman again demanded new counsel.  Id. at 645-51    
(Dec. 4, 2017 motion).  The court immediately addressed Baughman’s request 

at a hearing on pretrial motions.  Dkt. 10-11 at 5-13.  Baughman moved for a 
new hearing to demonstrate that he and his attorney were at loggerheads over 
trial strategy.  See id. at 8.  But the court denied this motion, explaining that 
Baughman’s case had been pending for more than 1300 days, and that it “needs 

to go to trial, and it needs to go today.”  Id. at 7.  Ultimately, Baughman decided 
to proceed with Mr. Gaiser as his attorney.  Id. at 13.                   
    Baughman’s trial lasted two days.  The State presented four witnesses:  
the victims, Machell and John Spear, and two arresting officers, Deputies 

Maxwell and Benningfield.  See Dkt. 10-13 at 16-211.  Ms. Spear testified that 
Baughman came to her house, grew agitated, put a gun to her forehead, and 
threatened to kill her and her son, John, who was standing nearby.  Dkt. 10-
13 at 111-12, 115-16, 120.  John corroborated these events, further describing 

the weapon as a silver gun with a brown handle that Baughman had shown    
John on a prior occasion.  Id. at 169, 174-78, 190, 208-09 (State Ex. 38).  Both 
victims testified that Baughman used the gun to strike Ms. Spear on the back 
of her head after she turned to flee.  Id. at 116-17, 119-20; see also id. at 182-

83 (John’s testimony).                                                    
    Ms.  Spear  had  given  a  similar  account  of  events  to  the  officer  who 
interviewed her at the scene.  See id. at 25-27 (Maxwell’s testimony).  Deputy 
Maxwell testified that Ms. Spear was hysterical, suffering pain, and had “an 
egg-sized knot that had been split open and ... blood in her hair.  Id. at 18, 23, 

25; see also Dkt. 10-16 at 10-14 (State Exs. 8-12, photographs).  About an hour 
after Deputy Maxwell’s arrival, Baughman drove up on his motorcycle.  Dkt. 
10-13 at 29-30, 59.  According to Deputy Maxwell, Baughman admitted to    
having a gun (insisting later it was a BB gun) but said he had thrown it in a 

ditch.  Id. at 30-31.  Maxwell took Baughman to the area where he claimed to 
have thrown the gun but found nothing there.  Id. at 30-31, 34, 61, 73.   
    During an inventory search of Baughman’s motorcycle, another officer, 
Deputy  Benningfield,  recovered  two  firearms—including  a  brown-handled 

pistol—from an attached saddlebag.  Id. at 30-31, 35-36, 55; Dkt. 10-16 at 16-
38 (photos, State Exs. 14-36); Dkt. 10-13 at 83-85 (Benningfield).  John Spear 
identified the brown-handled pistol as the one Baughman had used to strike 
his mother.  See id. at 176-77 (identifying State Ex. 25).                

    The State also read into the record a stipulation concerning Baughman’s 
prior conviction for attempted capital murder of a police officer, id. at 46, which 
the jury was instructed to consider only for the limited purpose of determining 
whether Baughman had a prior felony conviction—an element of the charge of 

felon in possession of a firearm, Dkt. 10-1 at 657.  Over Mr. Gaiser’s objection, 
the court also admitted a 911 call from a neighbor to whose house Ms. Spear 
had fled after the assault.  Dkt. 10-13 at 130-32; see also id. at 127-28 (Ms. 
Spear testifying that she sought help at house where the resident called 911).   

    During the defense’s case-in-chief, Mr. Gaiser put on two witnesses: 
Gerald Bush and Linda Pugh.  Mr. Bush testified that the firearms recovered 
at  the  scene  in  belonged  to  him;  Bush  had  left  them  in  motorcycle  after 
borrowing it.  Id. at 217-19.  Ms. Pugh, who is Baughman’s mother, id. at 

227-28, testified about Baughman’s character and his relationship with some 
of the other witnesses in this case.  See id. at 233-36.                  
    The jury convicted Baughman on one count of felon in possession of a 
firearm and two counts of aggravated assault with a deadly weapon.  Dkt. 10-

14  at  20-21.    Because  of  Baughman’s  prior  felony  conviction,  the  court 
sentenced him to 30 years in prison.  Dkt. 10-15 at 26.                   
    Baughman appealed.  Dkt. 10-1 at 728 (docket sheet).  The Fourteenth 
Court of Appeals modified the judgment to delete duplicative court costs but 

otherwise affirmed.  Dkt. 10-39 at 19.  The Texas Court of Criminal Appeals 
(“TCCA”) denied review.  See Dkt. 11-39.                                  
    Baughman then sought state habeas relief.  See Dkt. 11-25; Dkt. 11-29; 
Dkt. 11-32.  The trial court denied his petitions, Dkt. 11-22; Dkt. 11-26; Dkt. 

11-30, which decision was affirmed summarily on appeal, Dkt. 11-33.  The  
TCCA denied review.  Dkt. 11-38.  Baughman timely filed the instant petition 
under 28 U.S.C. § 2254, which is ripe for review.  Dkt. 1.                
                        Legal Standard                                   

    The Antiterrorism and Effective Death Penalty Act (“AEDPA”) curtails 
the grounds on which a federal court may issue a writ of habeas corpus.  Relief 
is available for claims that were adjudicated on the merits only if the state 
court’s decision (1) “was contrary to, or involved an unreasonable application 
of, clearly established Federal law, as determined by the Supreme Court of the 

United States” or (2) “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); Early v. Packer, 537 U.S. 3, 7-8 (2002) (quoting 28 U.S.C. § 2254(d)); 
Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012) (same).  The analysis is 

“limited to the record that was before the state court that adjudicated the claim 
on the merits.”  Cullen v. Pinholster, 563 U.S. 170, 180 (2011).          
    “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 
based on materially indistinguishable facts.”  Gray v. Epps, 616 F.3d 436, 439 
(5th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 404-08 (2000)).  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, 575 U.S. 312, 316 (2015) 
(quoting White v. Woodall, 572 U.S. 415, 419 (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, 
562 U.S. 86, 103 (2011)).                                                 
    A  state  court’s  factual  determinations  are  “presumed  to  be  correct” 

unless  the  petitioner  rebuts  those  findings  with  “clear  and  convincing 
evidence.”  28 U.S.C. § 2254(e)(1).  This presumption of correctness extends not 
only to express factual findings, but also to implicit or “unarticulated findings 
which are necessary to the state court’s conclusion of mixed law and fact.”  

Murphy v. Davis, 901 F.3d 578, 597 (5th Cir. 2018) (quoting Valdez v. Cockrell, 
274 F.3d 941, 948 n.11 (5th Cir. 2001)).  A federal court “may not characterize 
these state-court factual determinations as unreasonable ‘merely because [it] 
would have reached a different conclusion in the first instance.’” Brumfield v. 

Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 
(2010)).  “Instead, § 2254(d)(2) requires that [a federal court] accord the state 
trial court substantial deference.”  Id. at 314.                          
    “Rule 56 of the Federal Rules of Civil Procedure, relating to summary 

judgment, applies with equal force in the context of habeas corpus cases.”  
Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000) (citing Rule 11 of the Rules 
Governing § 2254 Cases and Fed. R. Civ. P. 81(a)(2)).  In ordinary civil cases, 
a court must construe the facts in a light most favorable to the nonmoving 
party.  See Tolan v. Cotton, 572 U.S. 650, 657 (2014).  AEDPA, however,   

modifies these principles; Rule 56 “applies only to the extent that it does not 
conflict with the habeas rules.” Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 
2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274, 284 
(2004).  “Therefore, § 2254(e)(1)—which mandates that findings of fact made 

by a state court are ‘presumed to be correct’—overrides the ordinary rule that, 
in a summary judgment proceeding, all disputed facts must be construed in 
the light most favorable to the nonmoving party.”  Id.                    
    As for the habeas petition itself, pleadings by pro se litigants are held “to 

less stringent standards than formal pleadings drafted by lawyers[.]”  Haines 
v. Kerner, 404 U.S. 519, 520 (1972).  “The filings of a federal habeas petitioner 
who is proceeding pro se are entitled to the benefit of liberal construction.”  
Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (citations omitted).   

                           Analysis                                      

    Baughman advances eleven grounds that allegedly entitle him to a new 
trial.  Dkt. 1.  The Director’s summary judgment motion groups these claims 
into four categories: ineffective assistance of counsel (grounds one, seven, nine, 
ten, and eleven), improperly admitted evidence (grounds two and six), Brady 
violations (grounds three and eight), and prosecutorial misconduct (grounds 
four and five).  Dkt. 14 at 11, 24, 28, 31.                               
    There is no dispute that Baughman raised the same contentions in his 
state habeas proceedings.  See Dkt. 11-32 at 10-29; Dkt. 11-35 at 10-29; Dkt. 

11-37 at 10-29.1  All factual determinations by the state habeas courts—even 
those merely implicit in the decision—therefore are presumed to be accurate.  
See 28 U.S.C. § 2254(e)(1); Martinez, 644 F.3d sat 242-42.  Moreover, the state 
courts summarily rejected Baughman’s habeas claims without explanation,   

Dkt. 11-30; Dkt. 11-33; Dkt. 11-38.  So to obtain relief here, Baughman must 
show that “there was no reasonable basis for the state court to deny relief.’”  
Salts v. Epps, 676 F.3d 468, 480 n.46 (5th Cir. 2012)) (applying this standard 
“where a state court summarily denies a petitioner’s motion” without providing 

reasons, quoting Harrington, 562 U.S. at 98).                             
I.   Baughman’s counsel was not unconstitutionally deficient.             

    Many  of  Baughman’s  contentions  challenge  the  conduct  of  his  trial 
counsel.    Three  of  them  allege  that  Mr.  Gaiser  conducted  an  inadequate 
investigation (grounds seven, nine, and ten), see Dkt. 1 at 9, 12, 14, and two 
allege that Mr. Gaiser provided inadequate representation at trial (grounds 
one and eleven), id. at 6, 16.                                            




1 The Director does not argue that Baughman failed to exhaust or otherwise defaulted 
on any of his claims.  See Dkt. 14 at 8.                                  
    A.   Legal standard: Strickland v. Washington                        

    Baughman’s complaints about his counsel are governed by Strickland v. 
Washington, 466 U.S. 668 (1984).  Under Strickland, Baughman first must   
demonstrate that his attorney’s representation was deficient.  See id. at 690.  
“[S]trategic choices made after thorough investigation of law and facts relevant 
to plausible options are virtually unchallengeable; and strategic choices made 

after less than complete investigation are reasonable precisely to the extent 
that  reasonable  professional  judgments  support  the  limitations  on  
investigation.”    Hinton  v.  Alabama,  571  U.S.  263,  274  (2014)  (internal 
quotation marks omitted).                                                 

    Under the first prong of Strickland’s test, counsel’s performance must be 
compared to “an objective standard of reasonableness, mindful of the strong 
presumption of adequacy.”  Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 
1997).  “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 [process] with obvious unfairness.”  Id. 
(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).           
    Review  of  counsel’s  conduct  is  doubly  constrained  in  the  context  of 

Section 2254(d) petitions.  “Federal habeas courts must guard against the 
danger of equating unreasonableness under Strickland with unreasonableness 
under § 2254(d).  When § 2254(d) applies, the question is not whether counsel’s 
actions were reasonable.  The question is whether there is any reasonable 
argument  that  counsel  satisfied  Strickland’s  deferential  standard.”  

Harrington, 562 U.S. at 105.                                              
    The  second  prong  of  Strickland  examines  whether  the  attorney’s 
“deficient performance prejudiced the defense.”  Strickland, 466 U.S. at 687.  
To satisfy this requirement, the defendant must show “there is a reasonable 

probability  that,  but  for  counsel’s  unprofessional  errors,  the  result  of  the 
proceeding would have been different.”  Id. at 694.                       
    B.   Baughman has not shown that counsel’s investigation was         
         deficient or that any deficiency prejudiced him.                

    Baughman  attacks  his  counsel’s  performance  by  asserting  that  Mr. 
Gaiser inadequately investigated the facts of the case.  Dkt. 1 at 9, 12, 14.  The 
record does not support Baughman’s contentions.                           
    As  a  legal  matter,  whether  Mr.  Gaiser  investigated  Baughman’s 
proposed defenses is a factual issue that the state habeas court implicitly 
resolved against Baughman.  See Murphy, 901 F.3d at 597.  Baughman offers 
no  “clear  and  convincing  evidence”  showing  that  the  state  court’s 

determination is unreasonable.  See 28 U.S.C. § 2254(e)(1).  To the contrary, 
the record indicates that Mr. Gaiser filed appropriate motions promptly after 
his appointment, see Dkt. 10-1 at 592, requested video evidence, see Dkt. 10-19 
at 4 (Gaiser’s Affidavit), and made strategic decisions about what evidence to 
challenge  or  introduce  and  what  witnesses  could  provide  potentially 
exculpatory evidence, see id. at 4-6.                                     

    Baughman’s  contentions  do  not  indicate  that  his  counsel  failed  to 
adequately  investigate  the  case.    For  instance,  Baughman  complains  (in 
ground seven) that counsel failed to withdraw a prior attorney’s motion to 
suppress and file a new motion.  Dkt. 2 at 25-28.  As the Director contends, and 

the Court agrees, Mr. Gaiser had no obligation to withdraw prior counsel’s 
suppression motion and file his own.  See Dkt. 14 at 18.                  
    Moreover, the motion to suppress was futile.  According to Baughman, 
the  inventory  search  of  his  motorcycle  that  uncovered  the  firearm  was 

unlawful because officers did not follow internal procedures that required 
completion of certain paperwork.  See Dkt. 2 at 26-27 (quoting testimony about 
information on the tow slip).  But “failure to compile the written inventory does 
not render the inventory search invalid.”  See United States v. Loaiza Marin, 

832 F.2d 867, 869 (5th Cir. 1987) (adopting this rule).  Baughman’s trial 
counsel had no obligation to pursue a meritless challenge.  See Murray v. 
Maggio,  736  F.2d  279,  283  (5th  Cir.  1984)  (per  curiam)  (“Counsel  is  not 
required to engage in the filing of futile motions.”).                    

    Nor did counsel improperly fail to investigate and pursue a self-defense 
claim (tenth point).  According to Baughman, one of the alleged victims, John 
Spear, was “high on methamphetamine” and had attacked Baughman—as         
purportedly evidenced by a bite mark on Baughman’s hand.  See Dkt. 2 at 38.  
As  the  Director  notes,  however,  Mr.  Gaiser  investigated  and  obtained 

Baughman’s medical records.  Dkt. 14 at 20-21 (citing Dkt. 10-19 at 4-6).  Those 
records reflected no evidence of a wound until after Baughman was jailed.  See 
Dkt. 10-19 at 5.  Mr. Gaiser’s decision to refrain from further exploring a self-
defense theory was reasonable.  See Hinton, 571 U.S. at 274.              

    Baughman’s  allegation  that  counsel  failed  to  investigate  evidence 
exposing perjury by State witnesses (ninth point) is equally flawed.  It asserts 
that Mr. Gaiser failed to obtain date and time stamps on photographs taken 
by police.  See Dkt. 1 at 12; Dkt. 2 at 34-35.  Those date and time stamps are 

not in the record.  Had this been investigated, Baughman argues, counsel  
would  have  found  that  the  officers  had  violated  departmental  policy  by 
searching  Baughman’s  motorcycle  before  charges  were  accepted—thereby 
providing fodder for impeaching the officers’ testimony and invalidating the 

inventory search that found the guns.  Dkt. 2 at 34-35.  This argument is 
speculative on its face and could be rejected for that reason alone.  See, e.g., 
Greer v. Davis, 2016 WL 6583712, at *17 (S.D. Tex. Nov. 2, 2016) (rejecting 
“speculative” contention that trial counsel improperly failed to obtain dispatch 

logs  that  would  have  been  exculpatory,  when  the  dispatch  logs  were  not 
included in the record).                                                  
    But even if Baughman’s speculation about this timeline were accurate, 
the state court reasonably could have concluded, albeit implicitly, that this 

type  of  policy  violation  would  not  have  required  excluding  the  guns.  
Baughman misplaces reliance on Florida v. Wells, 495 U.S. 1, 4-5 (1990), which 
held that the complete absence of any criteria for conducting an inventory 
search  would  violate  the  Fourth  Amendment.    But  the  Court  finds  no 

analogous Supreme Court decision holding that mere deviations from policies 
governing the timing for conducting an inventory search will categorically 
invalidate the search.  See, e.g., Gray, 616 F.3d at 439 (requiring that the state 
court’s decision contravene a prior Supreme Court decision, either directly, or 

“based on materially indistinguishable facts”).  Given Baughman’s inability to 
meet the strict standard of review and invalidate the search itself, he cannot 
do so with respect to counsel’s alleged failure to investigate the issue.   
    C.   Counsel’s  conduct  at  trial  was  neither  deficient  nor     
         prejudicial under Strickland.                                   

    Likewise,  Baughman  cannot  demonstrate  that  his  counsel  was    
unconstitutionally deficient at trial.  Baughman argues he was constructively 
denied counsel due to a conflict with Mr. Gaiser, Dkt. 1 at 6, and that Mr. 
Gaiser should have objected to the State’s introduction of his prior convictions, 
id. at 16.  Baughman’s contentions do not warrant relief.                 
    The  denial  of  Baughman’s  request  for  appointment  of  yet  another 
attorney provides no basis for relief.  See Dkt. 1 at 6; Dkt. 2 at 1-3.  Trial courts 

have discretion to deny last-minute requests to substitute counsel, see United 
States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980), and requests that are made for 
dilatory purposes, see Newton v. Dretke, 371 F.3d 250, 255-56 (5th Cir. 2004).  
Courts  examine  six  factors  when  reviewing  a  state  court’s  denial  of  a 

continuance to obtain new counsel:                                        
       (1)  the  length  of  the  requested  delay;  (2)  whether  the  lead 
       counsel has an associate who is adequately prepared to try the    
       case; (3) whether other continuances have been requested and      
       granted;  (4)  the  balanced  convenience  or  inconvenience  to  
       litigants,  witnesses,  opposing  counsel  and  the  court;       
       (5) whether the requested delay is for a legitimate reason, or    
       whether it is dilatory and contrived; (6) whether there are other 
       unique factors present.                                           
Gandy v. Alabama, 569 F.2d 1318, 1324 (5th Cir. 1978).  The record here   
reflects that Baughman already had received multiple continuances to obtain 
new counsel, that his case had been pending for over three years, and that his 
latest request evinced an improper attempt to delay the trial.  Dkt. 10-1 at 21, 
30, 591 (appointment of attorneys); 645-51 (motion to appoint new counsel filed 
December 4, 2017—the day of the pretrial hearing).  The trial court did not err 
by declining to grant Baughman’s eleventh-hour motion for continuance, filed 
on the day of his pretrial hearing, to appoint a fourth new attorney in this case.  
See  United  States  v.  Uptain,  531  F.2d  1281,  1290  (5th  Cir.  1976)  (“[T]he 
freedom to have counsel of one’s own choosing may not be used for purposes of 
delay.”); see also United States v. Sexton, 473 F.2d 512 (5th Cir. 1973) (“We 

cannot  hold  that  the  trial  judge  abused  his  discretion  by  concluding  that 
Sexton’s eleventh hour motions were interposed for delay.”).              
    As for counsel’s performance at trial, Baughman maintains that Mr.   
Gaiser should have objected to the stipulation about his prior conviction for 

attempted capital murder of a police officer.  Construed liberally, he maintains 
that this violated his 14th Amendment right to due process.  See Dkt. 1 at 16; 
Dkt. 26 at 37.  This argument is foreclosed.                              
    First, Baughman has not shown that his trial counsel was objectively 

deficient in handling the stipulation about the prior conviction.  As noted by 
the Fourteenth Court of Appeals, Baughman’s counsel did object when the trial 
court first ordered the entire stipulation to be read into the record.  See Dkt. 
10-13 at 13 (Mr. Gaiser objecting to the reading of the stipulation); Dkt. 10-39 

at 14 (court of appeals’ order).  Moreover, as the trial court later acknowledged 
at the hearing on Baughman’s motion for new trial, any error in reading the 
stipulation to the jury was committed by the court, and not by Baughman’s 
counsel.  See Dkt. 10-18 at 7 (new counsel asserting that Mr. Gaiser failed to 

object to reading of prior conviction); see also id. at 21 (trial court explaining 
“if there was an error, this was my error and not Mr. Gaiser’s”).         
    Regardless,  any  alleged  error  regarding  the  stipulation  was  not 
prejudicial, given the strong evidence supporting Baughman’s guilt.  Dkt. 10-

39 at 15-16 (court of appeals’ opinion on direct appeal).  As a matter of fact, 
both victims gave nearly identical accounts of how Baughman threatened to 
kill them and then struck Ms. Spear with a gun, compare Dkt. 10-13 at 111-
12, 115-16, 120 (Ms. Spear’s testimony), with id. at 174-78, 182-83, 190, 208-09 

(John Spear’s testimony), and Baughman did not meaningfully challenge their 
version of events.  The officers also found the firearm used in the assault, which 
Baughman (as a convicted felon) could not lawfully possess.  Id. at 85 (Deputy 
Benningfield testifying to contents of inventory search); id. at 176-77 (John 

Spear identifying the gun).                                               
    And as a matter of law, admitting evidence of prior convictions that are 
relevant  to  an  offense  does  not  violate  a  defendant’s  due  process  rights, 
especially when limiting instructions are given.  See, e.g., Spencer v. Texas, 385 

U.S.  554,  563,  568  (1967)  (addressing  habitual  offender  statute).    Here, 
Baughman’s counsel requested, and the trial court gave, a limiting instruction 
that ensured the jury only considered the prior convictions to determine if 
Baughman  was  a  convicted  felon—an  element  of  the  charge  for  felon  in 

possession of a weapon.  See Dkt. 14 at 26; Dkt. 10-14 at 4-5; Dkt. 10-1 at 657.  
Thus,  the  state  habeas  courts  reasonably  rejected  Baughman’s  Strickland 
contentions, which bars relief here.                                      
II.  Baughman’s evidentiary challenges provide no basis for habeas        
    relief.                                                              

    Baughman raises two points about impermissibly admitted evidence.    
The first largely reprises one of his Strickland allegations rejected above that 
the substance of his prior criminal conviction was improperly admitted.  Dkt. 
1 at 6 (ground two); Dkt. 2 at 9-11; see supra Part I.C.  But the Fifth Circuit 
rejected  an  analogous  due  process  challenge  to  the  introduction  of  a 
defendant’s prior crimes, holding that this evidence—even without a limiting 

instruction—did not have a “substantial and injurious effect or influence in 
determining the jury’s verdict.”  Smallwood v. Johnson, 73 F.3d 1343, 1349-50 
(5th Cir. 1996) (quoting Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 
1993)).  Admitting Baughman’s prior conviction did not violate his due process 

rights, particularly when the trial court gave a limiting instruction.    
    Second, Baughman contends (in ground six) that the trial court violated 
the Confrontation Clause by admitting a 911 call containing double hearsay.  
The call included statements from Ms. Spear recounting the events and asking 

for help.  Dkt. 2 at 23-24; Dkt. 10-13 at 127-28.  When admitting the call, the 
trial court ruled the statements fell within a hearsay exception for excited 
utterances and were not testimonial.  Dkt. 10-13 at 128-32.               
    The admissibility of alleged hearsay presents a question of state law that 

cannot provide a basis for habeas relief.  See Lawrence v. Lensing, 42 F.3d 255, 
258 (5th Cir. 1994) (citing Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993)); see 
also  infra,  Part  IV.B.    Admitting  the  911  call  also  did  not  violate  the 

Confrontation  Clause  because  the  recorded  statements  during  an  ongoing 
emergency do not qualify as “testimonial” under Crawford v. Washington, 541 
U.S. 36 (2004).  See Davis v. Washington, 547 U.S. 813, 828 (2006).  Rather, as 
the  trial  court  correctly  reasoned,  these  statements  were  made  to  obtain 

emergency assistance and not for the purposes of admitting the statements at 
trial.  Dkt. 10-13 at 130-31 (“It’s clearly an ongoing emergency.  The guy 
making  the  call  was  armed  with  a  gun  because  he  was  frightened....    It 
certainly is not testimonial.”).                                          

    In addition, the State correctly asserts that admitting the 911 call, even 
if erroneous, was harmless.  After all, Ms. Spear testified about the events 
recounted on the call.  See Dkt. 10-13 at 126-30.  Baughman’s evidentiary 
challenges should be rejected.                                            

III.  Baughman is not entitled to relief under Brady v. Maryland.         

    Baughman  next  attacks  the  adequacy  of  the  State’s  disclosure  of 
exculpatory and impeachment evidence as required by Brady v. Maryland.  See 
Dkt. 2 at 11-14, 30-33 (grounds three and eight).  To prevail, Baughman must 
show  that  (1)  the  prosecution  suppressed  evidence;  (2)  the  evidence  was 
favorable; (3) the evidence was material to either guilt or punishment; and 
(4) discovery of the allegedly favorable evidence was not the result of a lack of 
due diligence.  See Avila v. Quarterman, 560 F.3d 299, 305 (5th Cir. 2009).  The 
state habeas courts reasonably rejected Baughman’s Brady challenge.       

    A.   The disciplinary reports are not constitutionally material.     

    Baughman’s  first  complaint  (in  ground  three)  concerns  a  series  of 
disciplinary reports against the two officers who testified at trial: Deputy 
Benningfield  and  Deputy  Maxwell.    Baughman  claims  that  the  State 
unlawfully suppressed these reports.  See Dkt. 2 at 11-14, 63-84.         
    For Brady claims, “evidence is material only if there is a reasonable 
probability that, had the evidence been disclosed to the defense, the result of 
the proceeding would have been different.”  United States v. Bagley, 473 U.S. 

667, 682 (1985).  “The mere possibility that an item of undisclosed information 
might have helped the defense, or might have affected the outcome of the trial, 
does not establish ‘materiality’ in the constitutional sense.” United States v. 
Agurs, 427 U.S. 97, 109-10 (1976).  Rather, the alleged suppression of evidence 

must  have  “put  the  whole  case  in  a  different  light  so  as  to  undermine 
confidence in the verdict.”  Kyles v. Whitley, 514 U.S 419, 434-35 (1995). 
    The disciplinary reports do not meet this test.  The record indicates that 
Deputy Benningfield was disciplined twice—once for “fail[ing] to seal [an] 

evidence bag” and once for failing to correct paperwork.  Dkt. 2 at 12, 79, 81.  
Neither incident bears on the Benningfield’s truthfulness.  Even if they did, 
the strong evidence of Benningfield’s guilt, as detailed supra Part I.C and infra, 
Part II.B, undermines any reasonable probability that the outcome may have 
differed had the reports been disclosed.  See United States v. Weintraub, 871 

F.2d  1257,  1262-64  (5th  Cir.  1989)  (affirming  conspiracy  conviction  when 
withheld impeachment evidence did not cast “serious doubt” on the conviction).   
    Deputy Maxwell’s disciplinary record is equally immaterial.  He was  
cited three times for failing to complete paperwork correctly, Dkt. 2 at 63-70, 

once for not taking a complainant’s statement, id. at 71, 73, and once for failing 
to investigate a burglary “because he advised the Complainant that he was 
sick was about to go home,” id. at 77.  Most of these are administrative errors.  
None have any apparent relevance to Deputy Maxwell’s handling of this case.  

And even if those infractions bore tangentially on his credibility, the strength 
of the State’s case makes it improbable that the jury would have acquitted 
Baughman if the reports were admitted.  See Williams v. Davis, 2017 WL    
4541463, at *8 (S.D. Tex. Oct. 10, 2017).                                 

    Baughman’s contentions are doubly insufficient because of the standard 
of review in this case.  To prevail, Baughman must show that the state habeas 
courts violated “clearly established federal law.”  See 28 U.S.C. § 2254(d)(1).  
But the Court finds no binding authority that compelled the State to turn over 

evidence analogous to these disciplinary reports.  This asserted Brady violation 
cannot support habeas relief.                                             
    B.   The crime scene photograph metadata was not material to         
         Baughman’s guilt.                                               

    Baughman’s  second  Brady  claim—that  the  prosecution  withheld  the 
date and time for certain on-scene photographic evidence (ground eight)—fails 
because the evidence was not material to his case.  This argument hinges on 
Ms. Spear’s testimony indicating that Baughman was arrested immediately   
upon his arrival, Dkt. 10-13 at 140, a police log entry on the day of the incident 
indicating that Baughman was charged and “In Custody’ at 9:03:46 a.m.,” Dkt. 
11-32  at  157  (attached  to  Baughman’s  third  habeas  petition),  and  two 

photographs depicting him in handcuffs and standing by the patrol car, Dkt. 2 
at 31 (citing Dkt. 10-16 at 39 (State Ex. 37) and Dkt. 10-16 at 63 (DX 1)).  
Baughman  speculates  that  evidence  that  the  photos  were  taken  earlier, 
immediately  upon  his  arrival,  could  have  impeached  Deputy  Maxwell’s 

testimony at the suppression hearing that Baughman was not arrested until 
after the district attorney approved the charges, see Dkt. 10-11 at 47, thereby 
leading  to  exclusion  of  both  the  search  that  uncovered  the  guns  and 
Baughman’s inculpatory statement about possessing a gun.  Dkt. 2 at 30-32.   

    Like his related argument that his counsel was ineffective for failing to 
procure this evidence, see supra Part I.B, Baughman’s contention that the 
State violated Brady by failing to disclose it is wholly speculative.  Regardless, 
nothing indicates there was a reasonable probability that disclosure of the date 
and time stamps on the photos would have led to a different outcome.  See 
Bagley, 473 U.S. at 682 (materiality standard).                           

    The State’s case was strong.  See supra Part I.C.  Both victims testified 
that Baughman put a gun to Ms. Spear’s head, threatened to kill her and John, 
and then forcefully struck Ms. Spear’s head with the gun.  Dkt. 10-13 at 111-
12, 115-17, 119-20 (Ms. Spear); id. at 169, 174-78, 182-83, 190, 208-09 (John 

Spear).  Bolstering that further, Ms. Spear’s account at trial dovetailed with 
what she told Deputy Maxwell on the day of the incident, and what Deputy  
Maxwell saw upon arrival.  Id. at 18, 23, 25-27.                          
    The  Court  finds  no  clearly  established  law  indicating  that  whether 

Baughman was arrested at 9:03 a.m. or sometime earlier affects the lawfulness 
of the inventory search of his motorcycle that found his guns.  Moreover, given 
the record, the Court cannot conclude that the state court lacked a “reasonable 
basis” for denying relief on this claim.  Engle v. Lumpkin, 33 F.4th 783, 790 

(5th Cir. 2022) (quoting Harrington, 562 U.S. at 98; see also, e.g., Cannon v. 
Kelly, 2012 WL 1038802, at *9 (S.D. Miss. Mar. 29, 2012) (denying § 2254 relief 
on Brady claim where “a finding of immateriality by the State would not be 
objectively unreasonable”).  Baughman’s Brady contentions do not merit relief.   
IV.  Baughman   has  not  demonstrated  that  the  State  committed       
    misconduct warranting habeas relief.                                 

    Baughman’s remaining claims (grounds four and five) argue that the   
prosecution  offered  perjured  testimony  and  coached  witnesses  between 
examinations at trial.  See Dkt. 1 at 7, 8; Dkt. 2 at 15-23.  According to 
Baughman, these actions violated his due process rights.  Dkt. 2 at 15.    
    A.   Baughman has not shown that the State offered perjured          
         testimony.                                                      

    For  his  argument  about  perjured  evidence,  Baughman  focuses  on 
statements made by officers that the firearm used to strike Ms. Spear had been 
discharged three times.  Baughman argues that forensic reports reflect the gun 
was never fired, and thus the officers’ testimony was false.  Dkt. 2 at 15-18.   
    To prevail on a due process claim of perjured testimony, a petitioner 
must show (1) the actual falsity of that testimony; (2) that the prosecution 
knew the testimony was false; and (3) that the testimony was material.  See 

Giglio v. United States, 405 U.S. 150, 153-54 (1972); see also United States v. 
Mason, 293 F.3d 826, 828 (5th Cir. 2002).  Lack of materiality alone defeats 
Baughman’s claim.  At best, whether Baughman fired the pistol was tangential 
to the charges that he unlawfully possessed a firearm and committed assault 

by threatening to kill the victims and striking Ms. Spear with the gun.  See 
Dkt. 10-13 at 111-20.  Far from being “central” to the State’s case, the State’s 
closing argument barely mentioned the discharge of the firearm.  See Dkt. 10-
14 at 11-19 (single mention of this issue: “You heard about the gunshots”).  
There was no violation of Baughman’s due process rights.  And it was wholly 

reasonable for the state habeas courts to reach this conclusion.          
    B.   Baughman’s state law claims provide no basis for federal        
         habeas relief.                                                  

    Baughman’s last contention (fifth ground) invokes “the Rule,” i.e., Texas 
Rule of Evidence 614.  That rule provides, “[a]t a party’s request, the court 
must  order  witnesses  excluded  so  that  they  cannot  hear  other  witnesses’ 
testimony.”    Tex.  R.  Evid.  614.    Baughman  asserts  that  by  coaching  its 
witnesses, the State violated his due process rights.  Dkt. 2 at 18-23.   
    This claim cannot support habeas relief.  Under Section 2254, a state 
prisoner seeking review “must assert a violation of a federal constitutional 
right.”  Lawrence, 42 F.3d at 258.  Errors of state law are insufficient.  Estelle 

v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal 
habeas corpus relief does not lie for errors of state law.”) (internal quotation 
marks omitted); see also McDuff v. Johnson, 1998 WL 857876, at *9 (5th Cir. 
Nov. 17, 1998) (rejecting invocation of “Texas’ accomplice-witness rule” as basis 

for habeas relief).  Baughman’s reliance on “the Rule” is unavailing.     
V.   Baughman   is  not  entitled  to  an  evidentiary  hearing  or  a    
    certificate of appealability.                                        

    This Court should decline to hold an evidentiary hearing on Baughman’s 
petition.  A petitioner is entitled to a hearing only upon showing (1) a claim 
that relies on “a new rule of constitutional law, made retroactive to cases on 
collateral review by the Supreme Court, that was previously unavailable,” 

(2) “a factual predicate that could not have been previously discovered through 
the exercise of due diligence” or (3) “the facts underlying the claim would be 
sufficient  to  establish  by  clear  and  convincing  evidence  that  but  for 
constitutional error, no reasonable factfinder would have found the applicant 

guilty of the underlying offense.”  28 U.S.C. § 2254(e).  Because Baughman has 
not made any such showing, an evidentiary hearing is unwarranted.         
    Further, Section 2254 actions require a certificate of appealability to 
proceed on appeal.  28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 

335-36 (2003).  A district court must issue or deny a certificate of appealability 
when entering a final order rejecting habeas relief.  See Estelle v. Lumpkin, 
2022 WL 17587128, at *2-3 (S.D. Tex. Nov. 22, 2022).  Baughman has not made 
the requisite showing of a “substantial showing of the denial of a constitutional 

right,” 28 U.S.C. § 2253(c)(2), such that “reasonable jurists would find the 
district court’s assessment of the constitutional claims debatable or wrong.”  
Tennard, 542 U.S. at 282 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).  
This Court therefore should deny a certificate of appealability.          
                            Recommendation 
     For  the  foregoing  reasons,  it  is  RECOMMENDED  that  the  Court 
GRANT Respondent  Bobby Lumpkin’s  motion for  summary judgment  (Dkt. 
14),  DENY Petitioner Steven Kurt Baughman’s petition for a writ of habeas 

corpus  (Dkt.  1),  DENY his request for an evidentiary hearing,  and DENY a 
certificate of appealability. 
     The  parties have fourteen days from service of this Report and 
Recommendation to file written objections.  28 U.S.C. § 636(b)(1); Fed. 
R.  Civ.  P.  72(b).    Failure  to  file  timely  objections  will  preclude 
appellate review of factual findings and legal conclusions, except for 
plain error.  Ortiz v.  City of San Antonio Fire Dep’t, 806 F.3d  822,  825 
(5th Cir. 2015). 

     Signed on February 15, 2022, at Houston, Texas. 
                                           Lat 
                                            Yvonne Y. Ho 
                                            United States Magistrate Judge 

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