Marshall v. Davis

              UNITED STATES DISTRICT COURT           April 01, 2025  
               SOUTHERN DISTRICT OF TEXAS           Nathan Ochsner, Clerk
                   HOUSTON DIVISION                                  


GERALD MARSHALL,                §                                         
                           §                                         
         Petitioner,       §                                         
                           §                                         
VS.                             §     CIVIL ACTION NO. 4:14-CV-03438      
                           §                                         
BOBBY LUMPKIN-DIRECTOR TDCJ-CID,  §                                       
                           §                                         
         Respondent.       §                                         
                           §                                         

               MEMORANDUM AND ORDER                                  
I.   INTRODUCTION                                                         
The petitioner, Gerald Edward Marshall, filed this federal petition for a writ of habeas 
corpus challenging his state court conviction and sentence of death arising out of a capital murder 
that he was found to have participated in in Houston, Texas in 2003.  See [DE 19].  Also before 
the Court are Marshall’s amended petition [DE 185], the respondent’s, the Texas Department of 
Corrections, Director’s, response [DE 191] and Marshall’s reply [DE 196].  All state court 
proceedings have been exhausted and the matter is properly before the Court; hence, the petition 
is ripe for adjudication.                                                 

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II.  FACTUAL BACKGROUND                                                   
A.  The Scene                                                        
Although the petitioner raises issues in his petition that challenge the facts underlying his 
conviction, the jury’s verdict, the appeal(s) and all habeas proceedings and conclusions, rest on the 
following factual summary.                                                

Christopher Dean, an intellectually disabled male adult, reported for work on the evening 
of May 13, 2003, at the Whataburger restaurant near the Northwest Mall where he had been 
employed for over 13 years.  He had proven to be a faithful employee, even handling the chores 
of cashier when requested, particularly in the absence of the manager, Greg Love1.  It was Greg 
Love’s duty, as manager, however, to handle the restaurant safe and cash.  Later in Dean’s shift, 
Love informed the staff, consisting of Dean and two other employees, that his brother had been 
shot and that he was leaving but would return shortly.  Love did not return as promised and had 
left the restaurant’s cash in the manager’s office outside the safe.  Around 2:00 a.m., the staff 
locked the entrance to the restaurant and began taking orders only through the drive-thru window. 

At around 4:00 a.m. while Dean was working the drive-thru window, three men appeared 
at the window as though they were about to place an order.  They were later identified as Gerald 
“Tank” Marshall, Ronald “Bo” Worthy and Kenny Calliham.  Calliham was behind the wheel, 
Marshall was in the backseat and Worthy occupied the front passenger seat.  As Dean leaned 
through the drive-thru window to take the man’s order, Marshall began grabbing at Dean while 
pointing a gun at him.                                                    
Dean pulled away from Marshall in retreat.  Marshall then forced his way through the 
drive-thru window and entered the restaurant. At some point, Worthy exited the vehicle as though 


1 Greg Love was an indicted co-conspirator along with Gerald Marshall, Ronald Worthy and Kenny Calliham. 
2 / 26                                                                    
he was going to join Marshall in the restaurant.  Nevertheless, Marshall was successful.  Dean’s 
two co-works fled the area and hid themselves in spaces at the back or rear of the restaurant.  The 
record is unclear, but reflects that Marshall forced Dean to open the backdoor in order for Worthy 
to enter.2                                                                
Marshall caught up to Dean before he could escape and, while holding a gun on him, 

demanded the restaurant’s cash.  Dean’s co-employees could hear the exchange between Marshall 
and Dean as Dean protested that he could not open the safe.  Marshall became impatient with Dean 
and shot him.  Neither of Dean’s co-worker’s actually saw the person who fired the shot as their 
view was partially obstructed.  Dean died from a single gunshot wound to his head. 
B.  The Investigation                                                
There was no physical or forensic evidence at the scene of the crime that pointed to the 
men who were later accused of committing the offenses.  However, a tip relayed through Crime 
Stoppers eventually led police officers to Marshall believing him to be a participant in the crime.  
However, Marshall was arrested on an unrelated misdemeanor offense and, while in custody, was 

questioned about his knowledge of the robbery/murder at the restaurant.  He gave two statements, 
the sum total of which was that he had heard about the crime and admitted that he, Worthy and 
Calliham had visited the restaurant.  However, he denied entering the restaurant and shooting 
Dean.                                                                     
Shortly,  thereafter,  Calliham  surrendered  to  police,  gave  a  statement,  and  agreed  to 
cooperate in the investigation.  He admitted that he was the drive of the vehicle and identified 



2 This detail is irrelevant except that the presence of Worthy in the restaurant at or near the time that Dean was shot 
becomes a point of contention, by Marshall as to who, in fact, shot Dean. 
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Marshall as the shooter.  He also stated that Worthy had left the car during the robbery, but did not 
state whether Worthy had actually entered the restaurant.                 
The State of Texas (“State”) charged Marshall, Worthy and Calliham with offenses related 
to the robbery/murder.  Specifically, Marshall was charged and later convicted of Capital Murder 
and now seeks relief by his federal writ.                                 

C.  The Trial Testimony and Direct Appeal                            
The State chose to proceed to trial against Marshall and utilize Calliham as a cooperating 
witness.  Calliham’s testimony coupled with Dean’s co-worker and an inmate all identified 
Marshall as the shooter.  The sum of the Courtroom testimony was that Worthy entered the 
restaurant but left out before Marshall shot Dean.  In addition to the testimony of Marshall’s co-
defendants, Marshall’s girlfriend implicated him in the robbery/murder, during the investigation, 
based on statements made to her by Marshall after the crime was broadcasted on the local news.   
On November 9, 2004, the jury found Marshall guilty of Capital Murder and, by separate 
questions during the punishment phase, determined that Marshall should be put to death for his 

role in the robbery/murder of Dean.                                       
After the trial court denied Marshall’s request for a new trial, he appealed the judgment of 
conviction directly, to the Texas Court of Criminal Appeals (“TCCA”), pursuant to Tex. Code 
Crim. Pro. Art 37.071, § 2(h).  Marshall’s appellate counsel raised 13 grounds of error; all of which 
were  denied.    On  December  20,  2006,  the  TCCA  issued  its  opinion  affirming  Marshall’s 
conviction.  Marshall v. State, 210 S.W. 3d 618 (Tex. Crim. App. 2006).  Marshall appealed that 
ruling to the United States Supreme Court in petition for a writ of certiorari.  The Supreme Court 
refused to grant a writ.  See Marshall v. Texas, 552 U.S. 842 (2007).  He then returned to the trial 
court to begin a state writ process.                                      

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D.  The State Writ Application Process                               
On July 5, 2006, Marshall filed an application for state habeas relief.  In his state habeas, 
he raised four grounds for relief.  However, while that petition was pending, he filed a bevy of 
motions, pro se, attempting to add additional grounds to the four under consideration.  A total of 
seven grounds was considered and were taken up by the trial court.        

The trial court adopted the State’s proposed findings and conclusion and denied all 
requested relief on July 18, 2014.  Thereafter, the TCCA in its opinion, denied all relief on 
November 19, 2014, while dismissing Marshall’s pro se filings.  See Ex Parte Marshall, 2014 
WL6462907 (Tex. Crim. App., November 19, 2014).                           
Next, Marshall filed an application for federal writ relief on November 19, 2015.  This 
Court stayed consideration of the writ permitting requested limited discovery on certain of 
Marshall’s grounds for writ relief.  After an extended period, the Court pressed counsel for 
Marshall concerning going forward resulting in the filing of an amended writ petition on February 
28, 2020.                                                                 

The State filed a motion for summary judgment, followed by Marshall’s second motion for 
a stay seeking additional time for additional discovery.  Based on Marshall’s discovery and what 
might be called unexhausted grounds for relief, he requested and was permitted to return to state 
courts for consideration of those allegedly exhausted grounds.  Again, the Court stayed the case.  
The TCCA treated the new grounds as a successive writ describing the process as an abuse of the 
process and denied all requested relief.  See Ex Parte Marshall, 2022WL156894 (Tex. Crim. App., 
May 18, 2022.  This last writ application to the TCCA was designed to ensure that all of Marshall’s 
grounds for a federal writ had been presented to the TCCA.  These grounds represented issues that 
Marshall’s state writ counsel had failed to adopt and present in his state writ.  

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This Court then reopened Marshall’s federal writ case with the filing of his second 
amended complaint.  His first amended writ raised 16 grounds for relief.  However, his second 
amended application raised only 13 grounds abandoning three of the 16 set out in his first amended 
writ application.  Therefore, the Court determines that three dropped grounds are abandoned.  
III.  MARSHALL’S GROUNDS FOR WRIT RELIEF                                  

Marshall presents 13 grounds in his second amended petition.  To the extent that any of his 
ground addresses the same or a related ground, they will be combined to avoid repeated factual 
and/or legal discussions.                                                 
The 13 grounds are stated as follows:  (1) the State violated Marshall’s rights by using false 
testimony at the guilt and penalty stages of the trial; (2) the State violated his rights by employing 
inconsistent  theories  as  to  how  and/or  who  committed  the  crime;  (3)  the  State  suppressed 
exculpatory and impeachment evidence; (4) trial counsel was ineffective in his investigation and 
preparation for the guilt phase of the trial; (5) similarly, trial counsel ineffectively investigated and 
prepared  for  the  penalty  phase  of  the  trial;  (6)  the  cumulative  effect  of  trial  counsel’s 

ineffectiveness and the State’s “due process” errors violated his rights; (7) racial bias tainted 
Marshall’s criminal prosecution and trial; (8) the trial court erred in admitting his second statement 
into evidence when he did not validly waive his right to remain silent; (9) the trial court violated 
his rights by admitting his second statement into evidence because it was made in response to a 
false promise of leniency; (10) trial counsel failed to move to suppress his statements based on an 
illegal arrest; (11) the trial court violated his rights by admitting autopsy testimony; (12) he is 
actually innocent; and (13) the state trial judge was biased against him.  



6 / 26                                                                    
The State responded to Marshall’s petition arguing that the procedural law governing state 
felony writs preclude federal consideration of many of Marshall’s grounds of error.  Alternatively, 
the State argues, the grounds of error are without merit.  Marshall filed a reply. 
IV.  LEGAL STANDARDS                                                      
The federal writ of habeas corpus exists to free a person who “is in custody in violation of 

the Constitution or laws or treaties of the United States.”  28 U.S.C. § 2254(a).  However, a federal 
writ that reviews a state court conviction is guided by the AEDPA.  See White v. Wheeler, 577 
U.S. 73, 77 (2015).  Legal precedent teaches that “a state prisoner must exhaust available state 
remedies before presenting his claim to a federal habeas court.”  Davila v. Davis, 582 U.S. 521, 
527 (2017); see also 28 U.S.C. § 2254(b).  Additionally, “a federal court may not review federal 
claims that were procedurally defaulted in state court—that is, claims that the state court denied 
based on an adequate and independent state procedural rule.”   Davila, 582 U.S. at 527.  “These 
requirements ensure that the state courts have the first opportunity to correct any error with a state 
conviction and that their rulings receive due respect in subsequent federal challenges.”  Skinner v. 

Switzer, 562 U.S. 521, 541-42 (2011).                                     
The AEDPA’s requires that a petitioner show that the state court’s decision was either 
“contrary to, or involved an unreasonable application of, clearly established Federal law, as 
determined by the Supreme Court of the United States” or, that its 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)(1),(2).  Hence, a federal habeas court presumes that the 
underlying factual determinations made by the state court are correct, unless the inmate “rebut[s] 
the presumption of correctness by clear and convincing evidence.”  28 U.S.C. § 2254(e)(1); see 
Miller-El v. Cockrell, 537 U.S. 322, 341 (2003); See Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 

7 / 26                                                                    
2004) [holding that “[a]s a federal habeas court, we are bound by the state habeas court’s factual 
findings, both implicit and explicit.”)].  See also, Freeney v. Davis, 737 F.Appx. 198, 205-06 (5th 
Cir. 2019).                                                               
With those review standards in mind, the Court turns to the grounds presented by Marshall 
in his federal petition.  First, the Court finds that Marshall exhausted grounds one through seven, 

twelve, thirteen, and most of ground three in his successive state habeas application.  Because the 
TCCA dismissed that application as an abuse of writ under Tex. Code Crim. Pro. art. 11.071 § 5, 
Marshall must overcome the AEDPA’s procedural bar before the Court may address those 
grounds.  See 28 U.S.C. § 2254(a)(1), (2) and §(e)(1).                    
Marshall also raised grounds eight through eleven, and part of claim three, in a manner that 
allowed the state courts to adjudicate the merits.  The Court will first address any procedurally 
proper grounds before deciding whether federal review is available for the remainder.    
V.   PROCEDURALLY PROPER CLAIMS                                           
 The TCCA denied, on the merits, grounds eight through eleven, and part of ground three.  

With regard to those grounds, Marshall must show that the TCCA’s decision was contrary to, or 
an unreasonable application of, federal law.  See 28 U.S.C. § 2254(d)(1).   
A.  Marshall’s Second Police Statement (Claims Eight and Nine)       
Marshall raises two grounds related to his police statements.  First, he contends that the 
admission of his audiotaped police statement violated his federal constitutional rights because he 
did not “validly” waive his right to remain silent.  His second ground asserts that he only made his 
second statement after the police made a false promise of leniency.       
On May 13, 2003, the police approached Marshall’s girlfriend, Tamara Woods, who 
directed them to his sister’s apartment.  To that point, no arrest warrant related to Dean’s murder 

8 / 26                                                                    
had issued.  Marshall, however, had an outstanding Class C Misdemeanor arrest warrant pending 
for writing insufficient fund checks.  He was present in the apartment but refused to answer the 
door.  At that time, the law enforcement officers forcibly entered the apartment, placed Marshall 
under arrest and read the Miranda rights to him before transporting him to the Houston Police 
Department, Homicide Division, where he was detained and questioned.      

Beginning around 9:30 p.m., the night of his arrest, Marshall gave a lengthy videotaped 
statement after, again, receiving Miranda warnings.  In fact, he made two statements.  In his first 
statement, he admitted that he knew about the robbery.  He told officers that Greg Love, the 
manager of the restaurant, had helped with the robbery plans.  He also admitted that he had 
provided false license plates for use during the robbery.  The interview ended and Marshall 
remained in custody.  The next morning, Marshall stated that he wanted to talk again with the 
arresting police officers.  A second interview was conducted by the same police officer.  The 
officer again read Marshall his rights prior to any questioning or statement.  During this statement 
Marshall admitted to participating in the robbery/murder of Dean.         

Marshall’s trial counsel filed a pre-trial motion to suppress Marshall statements asserting 
various statutory and constitutional violations in the taking of his statement(s).  He asserted that 
Marshall’s confession was not voluntary and was the result of promises of leniency.  Additionally, 
he made claims of coercive and threatening actions directed toward Marshall and that the State did 
not honor his invocation of his right to remain silent.  The trial court held a suppression hearing in 
which Marshall and the officers involved in taking his confession testified.   
Marshall’s closing argument, in the suppression hearing, did not focus on the question of 
coercion or the failure of the police officers to give Miranda warnings.  Instead, he argued that 
Marshall was promised leniency if he gave a statement.  The trial court found that Marshall had 

9 / 26                                                                    
given statements freely and voluntarily and admitted the second statement into evidence. 
Before the TCCA, Marshall argued that the trial court erred by admitting his statement into 
evidence after he had unequivocally invoked his right to remain silent.  The TCCA held that, even 
assuming Marshall ambiguously invoked his right to remain silent, officer did not proceed to 
question [him] about the offense.  The TCCA also held that the circumstances surrounding the 

period of questioning established that Marshall’s response concerning the invocation of his right 
to remain silent was ambiguous at best.  In this circumstance, the officer is allowed to continue his 
questioning in order to clarify any uncertainty.                          
Because the TCCA adjudicated the merits of grounds eight and nine, Marshall must show 
that the Court’s decision was contrary to, or an unreasonable application of federal law, for 
purposes of federal writ relief.  28 U.S.C. § 2254(d)(1).  Marshall argues that the TCCA applied 
the wrong law, that it unreasonably extended inapplicable law to his claim, and that the ultimate 
decision was wrong because the investigating officer “continued to ask questions” even after he 
invoked his right to silence.                                             

Marshall’s arguments against the TCCA’s reasoning and conclusions fail.  The TCCA did 
not rely solely on Davis v. United States, 512 U.S. 452 (1994) as argued by Marshall.  Instead, it 
used Davis to lend support to its decision that, whether Marshall argues “right-to-remain silent” or 
“right-to-counsel”, the investigating officer had a right to ask clarifying questions where an 
accused’s response(s) are ambiguous.  See Berghuis v. Thompkins, 560 U.S. 370, 381 (2010). 
Considering the totality of the circumstances, this Court holds that Marshall has failed to 
show  that  the  TCCA  decision  concerning  ground  eight  was  contrary  to,  or  unreasonable 
application of federal law.  Soffar v. Cockrell, 300 F.3d 588, 594 (5th Circ. 2002) (citing Barnes, 
160 F.3d at 224-225).  Similarly, Marshall’s contentions concerning ground nine is without merit.  

10 / 26                                                                   
In ground nine, he argues that the trial court erred by admitting his second statement into evidence 
because it was made on the basis of a false promise of leniency.          
The trial court did not find that Marshall was threatened, intimidated or otherwise coerced 
into making a second statement.  The evidence shows that Marshall requested a second interviews.  
On appeal, the TCCA agreed.  In this Court’s view, the TCCA’s decision was not unreasonable or 

contrary to federal law.  Moreover, there is no proffer of evidence, beyond Marshall’s claim that 
officer made a promise of leniency.  Therefore, Marshall has failed to show that the investigating 
officer made a promise to him.  Hence, he is not entitled to relief under the AEDPA. 
The record also shows that Marshall persisted in his argument [ninth ground] about 
promises made to him.  In his tenth ground, he argues that his trial counsel should have argued that 
his arrest was illegal because the basis for the intrusion into the apartment was a Class C 
misdemeanor warrant; hence, the intrusion was an unauthorized forced entry; hence, his arrest was 
illegal.    Therefore,  counsel’s  performance  fell  below  an  objective  standard  for  reasonable 
representation.3                                                          





3 Marshall raises two separate claims of ineffective trial representation (claims four and ten).  Marshall only properly 
exhausted claim four in state court.  Respondent argues that the Court should treat them both as one solitary claim, 
subject to AEDPA deference and the limitations of Cullen v. Pinholster, 563 U.S. 170 (2011).  (Docket Entry No. 191 
at 122-23).  Respondent’s argument finds support in Nelson v. Lumpkin, 72 F.4th 649 (5th Cir. 2023), a case addressing 
how to apply AEDPA deference when a petitioner’s claim evolves between federal and state proceedings.  In Nelson, 
the inmate slightly altered a Strickland claim when he came to federal court, arguing that it became a whole new 
Strickland claim which would sidestep AEDPA review.  See Nelson, 72 F.4th at 659.  Here, however, Marshall has 
raised different Strickland claims at different times based on different factual backgrounds and has briefed them 
separately in his pleadings.  Somewhat in tension with Nelson, the en banc Fifth Circuit has criticized an inmate’s 
attempt at “rais[ing] different claims at different times with different facts in the state court, then smush[ing] them all 
together into a single claim in federal court.”  Lucio v. Lumpkin, 987 F.3d 451, 472 (5th Cir. 2021).  The en banc Fifth 
Circuit has directed courts to “analyze each claim as it existed at the time [the inmate] presented it to the state courts,” 
Id. at 480, which in this case would require the application of AEDPA deference to claim ten and result in the 
procedural bar of claim four.                                             
11 / 26                                                                   
B.   The Strickland Standard                                         
Under Strickland v. Washington, 466 U.S. 668 (1984): an attorney’s representation violates 
a criminal defendant’s Sixth Amendment rights when his “performance falls below an objective 
standard of reasonableness and thereby prejudices the defense.”  Yarborough v. Gentry, 540 U.S. 
1, 4 (2003) (emphasis added); see also Rompilla v. Beard, 545 U.S. 374, 380-81 (2005); Wiggins 

v. Smith, 539 U.S. 510, 521 (2003).  In a “highly deferential” review, the deficient-performance 
prong  “measure[s]  .  .  .  an  attorney’s  performance”  for  “reasonableness  under  prevailing 
professional norms” yet still “indulg[ing] a strong presumption that counsel’s conduct falls within 
the wide range of reasonable assistance.”  Strickland, 466 U.S. at 688-89.  A petitioner must also 
show prejudice; meaning “there is a reasonable probability that, but for counsel’s unprofessional 
errors, the result of the proceedings would have been different.”  Strickland, 466 U.S. at 694; see 
also Wiggins, 539 U.S. at 534.  The Court turns now to Marshall’s claims. 
On  state  habeas  review,  Marshall  raised  two  claims  related  to  the  circumstances 
surrounding his arrest.  He raised: a substantive claim that his arrest was illegal because the police 

possessed only a misdemeanor warrant and, the same ineffective-assistance claim that he renews 
on federal review, i.e., “trial counsel failed to raise the issue of [his] illegal arrest and the resulting 
taint to [his] custodial statements.”                                     
Marshall has not pointed to any federal constitutional prohibition against forced entry by 
police in possession of and based on a misdemeanor warrant.  Hence, his federal claim depends on 
a showing that his arrest was illegal under state law and that the state courts would have suppressed 
his police statements because of his illegal arrest.                      
Texas law authorizes forced entry under some circumstances.  Specifically, Tex. Code 
Crim. Pro. art. 15.25 states that in the case of a felony, an officer may break down the door for the 

12 / 26                                                                   
purpose of making an arrest when he refused admittance, after giving notice of his authority and 
purpose.  The state habeas court found that the writ results would not have been different had trial 
counsel objected on that basis, because Marshall lacked standing to deny entry.  His police 
statements were admissible as a result of his arrest, therefore, the TCCA ruling in Jones v. State, 
568 S.W.2d 847, 858 (Tex. Crim. Appr. 1978).  Hence, the outcome was not an unreasonable 

determination based on the fact and law.  The state habeas court found no illegality in Marshall’s 
arrest.  Moreover, the TCCA found that the results would not have been different had counsel 
objected.                                                                 
“In order to show that counsel was deficient for failing to object, . . . the objection must 
have merit.”  Ries v. Quarterman, 522 F.3d 517, 530 (5th Cir. 2008).  An attorney does not provide 
deficient performance by making meritless objections.  See Turner v. Quarterman, 481 F.3d 292, 
298 (5th Cir. 2007); Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).  Applying Texas law, 
the state court found that Marshall’s arrest was not illegal and thus trial counsel did not possess a 
valid  objection  to  the  arrest.    Therefore,  this  Court  will  not  re-examine  the  state-court 

determinations on the application of state-law.”  Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).  
Moreover, the TCCA, relying on Brown v. Illinois, 422 U.S. 590 (1975) (quoting Wong Sun v. 
United States, 371 U.S. 471, 486 (1963)) , determined that Marshall’s confessions were sufficient 
to purge any constitutional error.  Hence, the state habeas courts were not unreasonable in finding 
that trial counsel’s failure to object was not unreasonable in light of the fact any object would have 
lacked merit.                                                             
In his eleventh ground of error, Marshall alleges that evidence from an autopsy report 
performed by a member of the Harris County Medical Examiner’s Officer was “testimonial” under 
Crawford v. Washington, 541 U.S. 36 (2004) and, therefore, inadmissible.  An autopsy was 

13 / 26                                                                   
performed on the victim’s body in 2003.  However, by the time of trial, neither of the two doctors 
who performed the examination and prepared the report was still employed by the Harris County 
Medical Examiner’s Office.  When presenting the report, the State presented the testimony of 
another physician employed in the Department.  He authenticated the report and was permitted to 
testify from the report and photos as part of the business records of Harris County.  During his 

testimony, the State sought to introduce into evidence photographs and x-rays taken during the 
autopsy.  The State argued that the evidence was “made in the ordinary course of business and 
should be admitted under the business records exception.  The defense objected arguing that the 
evidence was more prejudicial than probative. However, the defense offered to stipulate to the 
cause of the victim’s death, but the State refused.  The trial court overruled the objection and 
admitted the exhibits.                                                    
Here, Marshall argues that the autopsy report and the accompanying photographs were 
“highly inflammatory” and, but for their admission, he would not have been sentenced to death.  
These records were offered and admitted during the punishment phase of the trial.  The State 

asserts that no Confrontation Clause violation occurred because the autopsy report was not created 
as evidence against Marshall.  The physician simply utilized the report and photographs to state 
his own opinions.  Moreover, the State argued, the photographs were not testimonial; hence, the 
Crawford analysis does not apply.  See Crawford v. Washington, 541 U.S. 36 (2004) to the penalty 
phase of a trial and, even if Crawford applies, the use of the report by the physician was harmless. 
While there is an ongoing discussion in the courts concerning the use of autopsy reports 
and whether or not the use gives rise to a Confrontation Clause analysis, the resolution of 
Marshall’s claim does not rest on that determination.  First, the autopsy report was not prepared 
for the purpose of accusing Marshall of committing the offense.  The report merely confirmed 

14 / 26                                                                   
what  Marshall had already admitted was undisputed.  Nevertheless, even if the report and 
photographs, in some measure, were testimonial, the state court found that any error was harmless 
in light of the totality of the undisputed evidence.                      
The Fifth Circuit has held that there is no Crawford violation when the alleged hearsay 
evidence is used in sentencing.  See United States v. Dinh, 920 f.3d 307, 311-12 (5th Cir. 2019).  

Importantly, the record fails to show that Marshall exhausted this claim at the state habeas court 
level.  In this circumstance, when a state court determines that an alleged error was harmless, a 
federal  court  may  not  award  habeas  relief  unless  the  harmless  determination  itself  was 
unreasonable.  Davis v. Ayala, 576 U.S. 257, 269 (2015).  The jury determined that Marshall fired 
the fatal shot killing Dean and that fact is undisputed.  Hence, the state habeas court’s holding that 
the autopsy report added nothing to that finding, and Fifth Circuit’s permissive use of such 
evidence during the punishment phase of the trial means that Marshall has failed to meet the 
AEDPA’s standard for federal habeas relief.                               
C. The Remaining Brady Error Ground for Relief                       

The Court returns to that aspect of Marshall’s ground of error three where he makes a Brady 
claim.  He claims that testimony from the State concerning an altercation that he was allegedly 
involved in, and that occurred in the county jail while he was awaiting trial, was untrue.  He asserts 
that the State was aware of a witness that could have exonerated him but failed to disclose that 
witness’ identity even through the State called other witnesses who testified that Marshall was 
involved.  Marshall asserts that the State had a duty to disclose any witness that might contradict 
the testimony of the State’s witnesses.                                   
The record shows that the State called jailed witnesses that accused Marshall of provoking 
an altercation.  The State asserts that it learned of the exculpatory testimony only after its witnesses 

15 / 26                                                                   
had testified.  The record shows, however, that before the State’s presentation of evidence was 
concluded, Marshall learned of other witnesses and was able to present the testimony of one or 
more witnesses concerning the same altercation.  That testimony reflected that Marshall did not 
start the altercation but attempted to break it up.  Nevertheless, after the exculpatory testimony was 
received, trial counsel moved for a mistrial based on the State’s delayed disclosure of the 

exculpatory evidence. The trial court denied Marshall’s motion for a mistrial.  
On direct appeal, the TCCA determined that the delay by the State in disclosing other 
witnesses or, the failed disclosure, was harmless because Marshall was able to present the 
exculpatory evidence in the same proceeding.  On federal writ review, the question is whether the 
TCCA decision was contrary to, or an unreasonable application of federal law.   
See 28 U.S.C. § 2254(d)(1)4.                                              
The Fifth Circuit has held that a Brady violation does not occur when the evidence is 
received in time for a jury to have use of it during the trial.  Powell v. Quarterman, 536 F.3d 325, 
335 (5th Cir. 2008).  The record shows that Marshall had use of the evidence during the trial, 

proceeding although tardy.  Nevertheless, the Court must decide whether the delay resulted in an 
AEDPA violation such that the State’s conduct was harmless.  The Court holds that the TCCA 
finding that the late disclosure did not harm Marshall was not constitutionally unreasonable.  As 
well, there is no evidence that the TCCA decision was contrary to federal law.  Hence, the Court 
denies Marshall’s Brady claim holding that the AEDAP standard for writ relief has not been met.   


4 The Court of Criminal Appeals succinctly denied this claim:             

We decide that any Brady violation was harmless primarily because the record reflects that 
[Marshall] was, in fact able to present to the jury the evidence that he claims the State failed to 
disclose in violation of Brady.  Cf. Hampton v. State, 86 S.W.3d 603, 612 n. 26 (Tex. Cr. App. 2002).  
See Marshall, 210 S.W.3d at 636.                                     
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V.   PROCEDURALLY BARRED CLAIMS                                           
Procedural defects preclude federal writ consideration of several of Marshall’s grounds for 
writ relief.  Hence, a federal court sitting in habeas cannot grant relief on claims that a petitioner 
has failed to present to the state courts because the AEDPA’s exhaustion requirement is mandatory.  

See 28 U.S.C. § 2254(b)(1)(A). Marshall’s original federal petition, nevertheless, raised numerous 
grounds for writ relief the first time.  Specifically, He did not give the state courts an opportunity 
to consider grounds of error one through seven, twelve, and thirteen.     
On August 23, 2021, this Court stayed the case to allow the exhaustion of other grounds 
for relief in the state court, knowing well that Texas law does not guarantee a review of a 
“successive habeas”.  Under Texas law, a successive habeas application may proceed when a 
petitioner could not raise the claims earlier, for example, “because the factual or legal basis for the 
claim was unavailable on the date of the previous application . . ..”  Tex. Code Crime Pro. art. 
11.071 § 5(a)(1).                                                         

On May 18, 2022, the state habeas court found that Marshall “failed to satisfy the 
requirements of Article 11.071, § 5(a) and, therefore, dismissed his writ application as an abuse of 
the writ without considering the merits of his grounds.  Ex parte Marshall, 2022 WL 1568941, at 
*1 (Tex. Crim. App. 2022).  Hence, Marshall could return to federal court. 
Upon return, Marshall filed a second amended petition that includes his newly exhausted 
grounds.5  The exhausted grounds, one through seven, twelve and thirteen are ripe for federal 
consideration.  The Court notes that the TCCA’s relied on article 11.071 as an “adequate and 


5 The Court considers the grounds of error exhausted for federal review purposes even though the TCCA did not 
consider the merits of Marshall’s claims.                                 
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independent” basis to bar consideration of the defaulted claims and so it did.  See Mullis v. 
Lumpkin, 47 F.4th 380, 389 (5th Cir. 2022); Buntion v. Lumpkin, 31 F.4th 952, 962 (5th Cir. 2022).  
In this regard, the Supreme Court has held:                               
[i]n all cases in which a state prisoner has defaulted his federal claims in state court 
pursuant to an independent and adequate state procedural rule, federal habeas 
review of the claims is barred unless the prisoner can demonstrate cause for the 
default and actual prejudice as a result of the alleged violation of federal law, or 
demonstrate  that  failure  to  consider  the  claims  will  result  in  a  fundamental 
miscarriage of justice.                                              

Coleman, 501 U.S. at 750 (emphasis added).                                
A petition shows cause by demonstrating “something external . . . that ‘impeded [his] 
efforts to comply with the State's procedural rule.’” Id. at 753 (alteration in original) (quoting 
Murray v. Carrier, 477 U.S. 478, 488 (1986)).  “Actual prejudice” requires a petitioner to “prove 
that the errors” ‘worked to his actual and substantial disadvantage, infecting his entire trial with 
error of constitutional dimensions.’”  Canales v. Stephens, 765 F.3d 551, 562 (5th Cir. 2014) 
(quoting United States v. Frady, 456 U.S. 152, 170 (1982)).  A fundamental-miscarriage-of-
exception occurs when the inmate shows actual innocence.  See Herrera v. Collins, 506 U.S. 390, 
404-05 (1993).  Hence, Marshall must show that he can overcome the procedural bar of his 
procedurally deficient claims before the Court can consider their merits.   
The Court will consider each of Marshall’s defaulted grounds in state court and decide 
whether he has overcome the procedural bar before addressing the merits of any ground for relief.  
His argument that he is innocent will serve as a vehicle to allow federal review of his state barred 
grounds.  Therefore, the Court will first discuss his twelfth ground—his actual-innocence claim—
before turning to other barred claims.                                    

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I.   Actual Innocence (Claim Twelve)                                      
In his twelfth ground for relief, Marshall alleges that his capital conviction and death 
sentence violate the Constitution because he is actually innocent of committing the robbery/murder 
of Dean.  His actual-innocence arguments may be reviewed in two contexts:  first, as a stand-alone 
constitutional  (substantive) claim  and, second,  as a procedural  mechanism as a vehicle  for 

forgiving the default of other claims.  Marshall asserts innocence in both contexts.  The Court 
starts with the “substantive” claim.                                      
A.   Substantive Claim of Ground Twelve                              
Marshall argues his innocence as a substantive ground for habeas relief.  He defaulted 
consideration of an actual innocence ground by raising it only in his successive state habeas 
application.  Thus, he makes the circular argument that his innocence should allow for substantive 
consideration of his actual-innocence claim.  Be that as it may, actual innocence is not a cognizable 
ground for federal relief.  The wealth of precedent defeats his arguments.  See Herrera v. Collins, 
506 U.S. 390, 400 (1993); Schlup v. Delo, 513 U.S. 298, 326 (1995); In re Raby, 925 F.3d 749, 

755 (5th Cir. 2019); In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009).  Federal habeas relief 
is, therefore, unavailable on claim twelve insofar as Marshall relies on it as a substantive basis for 
habeas relief.6                                                           
B.   Fundamental Miscarriage of Justice                              
Marshall also argues that his innocence ground should allow for federal review of his other 
barred claims because, not to do so, would result in a fundamental miscarriage of justice.  Under 


6  Alternatively, this claim lacks merit.  The Supreme Court has hypothesized that a valid actual innocence claim would 
require a “threshold showing” that is “extraordinarily high.”  Herrera v. Collins, 506 U.S. 390, 417 (1993) (emphasis 
added).  Such a showing would require “more convincing proof of innocence” than the fundamental-miscarriage-of-
justice standard found in Supreme Court cases such as Schlup v. Delo, 513 U.S. 298 (1995).  See House v. Bell, 547 
U.S. 518, 555 (2006).  Marshall has not shown that he is actually innocent. 
19 / 26                                                                   
Schlup v. Delo, 513 U.S. 298 (1995), a petitioner makes such a showing by proving his actual 
innocence.  See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Actual innocence means “factual 
innocence,” Bousely v. United States, 523 U.S. 614, 623 (1998). A petitioner “prove[s] a gateway 
claim of actual innocence through new and reliable evidence.”  Merryman v. Davis, 781 F. App’x 
325, 330 (5th Cir. 2019) (emphasis added).                                

The Supreme Court has not specified when evidence is considered new or reliable other 
than to say it includes “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 
physical evidence.”  Schlup, 513 U.S. at 324.  The Fifth Circuit has observed that “[e]vidence does 
not qualify as ‘new’ . . . if ‘it was always within the reach of [an inmate’s] personal knowledge or 
reasonable investigation.’”  Hancock v. Davis, 906 F.3d 387, 390 (5th Cir. 2018) (quoting Moore 
v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008)). Moreover, it must be “‘material, not merely 
cumulative or impeaching.’”  Vega v. Johnson, 149 F.3d 354, 364 (5th Cir. 1998) (quoting Lucas 
v. Johnson, 132 F.3d 1069, 1076 n. 3 (5th Cir. 1998)).7  Nevertheless, out of an abundance of 
caution the Court has examined each of Marshall’s theories for writ relief. 

C.   Marshall’s Actual-Innocence Theories                            
In his second amended petition, Marshall lists what he terms “new evidence”, evidence 
presented at trial that proves, of itself, that he is innocent.  In this regard, he asserts:  
(1)  the prosecution knew and believed that Worthy was inside the restaurant at 
     the time of the murder;                                         
(2)  the prosecution knew and believed Worthy carried a real, loaded gun during 
     the robbery;                                                    
(3)  the prosecution knew and believed Kenny Calliham was lying when he 

7  The respondent argues that AEDPA also limits what evidence the Court may consider when deciding whether 
Marshall has shown his actual innocence.  Respondent says that Marshall’s actual-innocence evidence must meet the 
requirements of 28 U.S.C. § 2254(e)(2).    The Supreme Court, however, has commented that section 2254(e)(2) does 
not “address[] . . . a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual 
innocence” in which its “standard of review . . . is inapplicable.”  House v. Bell, 547 U.S. 518, 539 (2006); see also 
Rivas v. Fischer, 687 F.3d 514, 551 (2nd Cir. 2012); Vineyard v. Dretke, 125 F. App’x 551, 554 (5th Cir. 2005); Will v. 
Thaler, 2011 WL 13242888, at *4 (S.D. Tex. 2011).                         
20 / 26                                                                   
     testified at Marshall’s trial that Worthy was not inside the restaurant at the 
     time of the shooting and was not carrying a real gun;           
(4)  newly  obtained  expert  evidence  demonstrates  that  Marshall’s  in-court 
     identification was inherently unreliable and inadmissible and that, as a 
     result, his identification should have been quashed;            
(5)  eyewitness, Tony Ketchum, recanted his trial testimony at trial stating that 
     the shooter held the gun in his right hand;                     
(6)  Worthy is left-handed, a critical fact that was not presented at Marshall’s 
     trial; and,                                                     
(7)  the prosecution knew and believed Derrell McQueen was the witness who 
     reported that Worthy confessed to shooting the victim, yet intentionally hid 
     his identity from the defense.                                  

Any value in Marshall’s actual-innocence argument lies in whether it raises reasonable 
doubt about his role as the shooter.  Marshall does not provide any actual or conclusive proof that 
another person shot Dean.  His petition simply repeatedly emphasizes differences between the 
testimony during his trial and that of his co-defendants.  However, his co-defendants’ testimony 
was consistent on the most important jury consideration, i.e., that Marshall fired the killing shot.8  
Nothing suggests that the State ever believed, or any co-defendant tried to prove, otherwise. 
Given the factual support for the jury’s verdict, and weaknesses in Marshall’s “new actual-
innocence arguments”, he has not proven factual innocence.  Therefore, this theory fails.  The 
Court denies Marshall’s actual-innocence claim both as a substantive ground for relief and as a 
vehicle providing for federal review of the remainer of his barred claims. 
C-1.  Prosecutorial Misconduct (Claims One and Two)                       
In his first two grounds for federal habeas relief, Marshall argues that the State “knowingly 
presented false and misleading testimony and failed to correct the testimony it knew to be false” 
and “intentionally presented two conflicting and inconsistent theories concerning who fired the 

8  For example, the State of Texas charged Worthy with capital murder, but proceeded under the theory that he was 
culpable as a party because Marshall had been the one who shot the victim. See Worthy v. State, 2007 WL 624667, at 
*5 (Tex. App. -Houston [1 Dist.], 2007).                                  
21 / 26                                                                   
fatal shot referring to his and his co-defendants’ trials.  Essentially, he argues that the State adopted 
different theories concerning the crime in his and Worthy’s trials.  In his trial, he asserts that the 
State presented evidence that he alone entered the Whataburger restaurant.  During Worthy’s trial, 
he asserted that the State presented evidence that two suspects entered the restaurant.  This ground 
for relief fails because Marshall cannot meet the strictures of § 2254(e)(2): either the “new rule” 

principle or the “clear and convincing” evidence standard, See Granger v. Lumpkin, ___ F. App’s 
___, 2024, WL 3582651 at * 3 (5th Cir. July 30, 2024).  Moreover, Marshall cannot show that the 
State’s theory for conviction in Worthy’s case was unavailable to him when he filed his first state 
habeas application on July 5, 2006.  Finally, his argument that the information was unavailable to 
him personally, fails to reach AEDPA standards. Because Marshall did not develop that evidence 
in state court, it is not available on federal review.                    
C-2.  Cause and Actual Prejudice                                     
Next,  Marshall  argues  that  he  can  overcome  the  procedural  bar  of  these  claims  by 
demonstrating cause and prejudice.  “[T]he existence of cause for a procedural default must 

ordinarily turn on whether the prisoner can show that some objective factor external to the defense 
impeded counsel’s efforts to comply with the State’s procedural rule.”  Murray v. Carrier, 477 
U.S. 478, 488 (1986); see also Coleman v. Thompson, 501 U.S. 722, 753 (1991).  In that review, 
“[i]t is well established that a failure to raise a claim in an earlier habeas petition may not be 
excused for cause if the claim was reasonably available at the time of the first petition.”  Prible v. 
Lumpkin, 43 F.4th 501, 514 (5th Cir. 2022) (quotation omitted); see also Ford v. Davis, 910 F.3d 
232, 237 (5th Cir. 2018); Fearance v. Scott, 56 F.3d 633, 636 (5th Cir. 1995).   
Marshall  has  not  shown  any  external  impediment  that  prevented  his  attorneys  from 
obtaining the information that he now offers.  Hence, there is no actual prejudice and no showing 

22 / 26                                                                   
that a reasonable probability exists that the result of the trial would have been different.  Strickler 
v. Green, 527 U.S. 263, 289 (1999); see also Pickney v. Cain, 337 F.3d 542, 545 (5th Cir. 2003).   
C-3.  Actual Innocence                                               
Marshall contends that a fundamental miscarriage of justice allows full federal review of 
his ground of “actual innocence.”  As discussed earlier and fully, concerning ground twelve, 

Marshall has not met the high standards required to show actual innocence.  
C-4.  Other Theories                                                 
As “Additional  Ways to  Excuse Procedural  Default,” Marshall makes the following 
cursory arguments in an attempt to overcome the AEDPA procedural bar:     
To begin, Texas’s state habeas system, at the time of Marshall’s initial state habeas, 
was ineffective to protect Marshall’s rights and was also an inadequate default to 
prevent the consideration of Marshall’s federal rights. Texas’s ineffective habeas 
system also serves as cause to excuse the default, and the merits of these three 
claims supply the prejudice. Additionally, Marshall’s efforts to escape out from 
under the ineffective state system allow him to avoid the strictures of 28 U.S.C. § 
2254(e)(2). Additionally, the [Court of Criminal Appeals’] determination that new 
evidence supporting these claims was available at the time of the initial state 
petition is factually incorrect, which renders the imposed default inadequate to bar 
federal review. Also, the [Court of Criminal Appeals’] finding of unavailability of 
the new evidence, discussed above, is not independent of federal law. 

These arguments center on perceived defects in the state habeas process and alleged inadequacy 
in Texas’ procedural law.  This appears to be more an argument of bias than substance.  However, 
infirmities in state habeas proceedings do not constitute cause to excuse a procedural default.”  
Bruce v. Cockrell, 74 F. App’x 326, 331 (5th Cir. 2003).                  

23 / 26                                                                   
In the remainder of Marshall’s theories for relief, he contends that the State withheld 
exculpatory information.9  The State’s argument adequately summarizes Marshall’s arguments as 
follows:                                                                  
(1)  the  State  suppressed  a  portion  of  Worthy’s  interrogation  video  that 
     identifies the Crime Stoppers tipster;                          

(2)  the State suppressed evidence that Worthy was more culpable because he 
     possessed a real gun and entered the restaurant;                

(3)  more than one co-defendant entered the Whataburger restaurant;  

(4)  the State suppressed exculpatory results from fingerprint evidence; 

(5)  the State delayed disclosure of Clarence Green’s testimony;     

(6)  the State delayed disclosure of impeachment evidence from the Dennis 
     Meyer’s interview tape;                                         

(7)  the State failed to timely disclose exculpatory evidence from Mario Cadena; 

(8)  the State failed to timely disclose impeachment evidence related to the 
     punishment phase witnesses Israel Gonzales, Ronald Lee Dixon, David 
     Harvey, and Leandrew Bradley; and                               

(9)  the State never disclosed post-trial evidence that, in a separate criminal 
     proceeding, Kenny Calliham attempted to corruptly influence a witness. 

The Court has already addressed Marshall’s contentions regarding Mario Cadena.  The 
remaining arguments are procedurally barred.                              
In his fourth and fifth grounds of error, Marshall raises numerous complaints about his trial 
attorneys’ performance.  He contends that his attorneys made several errors in the preparation for 
and presentation of their guilt/innocence defense.  He also argues that his trial counsel presented 

9  Marshall alleges a pattern of suppression in this case which leads him to hypothesize that more undisclosed evidence 
exists.  Marshall states that his amended petition contains “the suppression-of-evidence claims for which [he] presently 
has sufficient notice and factual basis to plead a prima facie case, but then does not identify evidence which has not 
come to light, but which he suspects may exist.  Marshall premises these arguments on speculation and surmise, not 
on concrete allegations that he has already developed and litigated in state court.   
24 / 26                                                                   
an ineffectual and incomplete penalty defense.  However, Marshall defaulted both claims.  Hence, 
claims four and five are procedurally barred.                             
In his sixth ground for relief, Marshall alleges that “the combined prejudice from [his] trial 
counsel’s ineffective representation and the State’s misconduct and suppression of favorable 
evidence entitles [him] to relief from his conviction and [a] death sentence.”  This ground too, was 

not raised properly in state court, and because it was not, Marshall does not overcome the resultant 
procedural bar.                                                           
In  his  seventh  ground  for  relief,  Marshall  argues  that  his  “death  sentence  is  the 
unconstitutional  byproduct  of pervasive racial  discrimination” in  the Harris  County  District 
Attorney’s Office. He relies on: (a) studies examining the role of race in capital cases; (b) an 
analysis of similar prosecutions against white defendants; and (c) historical circumstances that he 
contends demonstrate bias against African-American defendants.            
Marshall  defaulted  this  claim  by  raising  it  in  his  successive  habeas  application.  
Nevertheless, he has not shown any external barrier to discovering the same information or data 

in his initial state habeas application.  Importantly, he has not shown any impediment to developing 
this argument or presenting evidence in his own case.  Hence, he has not overcome the procedural 
bar to this ground and, therefore, is not entitled to writ relief.  Thus, this ground for relief fails. 
Marshall’s final ground for relief alleges that the trial judge was biased against him, as 
demonstrated by rulings on evidentiary issues.  He did, in fact, file two pro se motions to recuse 
the judicial officer during his trial but did not raise this as a constitutional basis for relief until he 
filed his pro se arguments during his state habeas review.  The state courts considered his pro se 
pleading to be a subsequent habeas application under Tex. Code Crim. Pro. art. 11.071.  Ex parte 
Marshall, No. WR-71,752-02, 2014 WL 6462907, at *1 (Tex. Crim. App. Nov. 19, 2014), and 

25 / 26                                                                   
dismissed his pleadings as an abuse of the habeas writ.  That dismissal operates as a bar to federal 
habeas review.  See In re Hall, 2023 WL 8798032, at *2 (Tex.  Crim.  App. 2023).  Because 
Marshall has not shown any external impediment that prevented him from raising this claim on 
direct appeal or in his initial state habeas application, this claim, too, is procedurally barred. 
                           CONCLUSION 
 The Court has considered Marshall’s petition in light of the briefing, the record, and the 
law.  Any of Marshall’s arguments not specifically discussed herein are denied.  Hence, the Court 
DENIES Marshall’s federal petition for a writ of habeas corpus. 
 It is so ORDERED. 
 SIGNED on March 31, 2025, at Houston, □□□

                                     United States District Judge 

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