Kessler v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
CORRECTED June 28, 2005
IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-41551
Summary Calendar
ALTON L. KESSLER,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-262
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Before JONES, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alton L. Kessler, a Texas prisoner (# 909358), appeals from
the magistrate judge’s denial of his 28 U.S.C. § 2254 habeas
corpus petition, in which Kessler challenged his 2000 jury-trial
conviction of the aggravated sexual assault of his step-daughter,
Kelsey. The jury assessed a sentence of 99 years in prison and
a $10,000 fine. The magistrate judge granted Kessler a
certificate of appealability (“COA”) on the issues “(1) whether
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-41551
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Kessler was denied due process or a fair trial through the
introduction of extraneous offenses at trial, and (2) whether
Kessler received ineffective assistance of counsel when his
attorney failed to object to the introduction of extraneous
offenses at trial.” This court expanded the COA to include a
claim that counsel performed ineffectively by failing to seek a
limiting instruction on the extraneous-offense evidence.
Federal habeas relief may not be granted upon any claim that
was “adjudicated on the merits in State court” unless the
adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529
U.S. 362, 409 (2000).
The Texas Court of Appeals’ unpublished opinion on direct
appeal reported that the trial evidence showed that Kelsey, who
was six at the time of the offense, described several occasions
during which Kessler asked her to perform oral sex on him.
Kelsey’s mother and her brother, Joseph, observed Kelsey
performing oral sex on him.
Other trial evidence reflected that Kessler, his wife Julie,
and her three children were members of a nudist “ranch.” At the
time of trial, Julie had already pleaded guilty to the aggravated
assault of Joseph, who was only seven or eight years old at the
time, and had been sentenced to 15 years in prison. The
testimony of Julie, an admitted abuser of methamphetamines, and
of Kelsey and Joseph, indicated that both Kessler and Julie
No. 03-41551
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regularly committed sexual acts with both of Julie’s older
children, as well as with each other and a variety of people from
outside the household, often in plain view of other family
members. The evidence also included testimony about extraneous
offenses and acts, including drug use; masturbation; unusual
sexual practices; the use of bad language; domestic violence
against Julie; the open presence of pornography, handcuffs, and
chains in the household; the harboring of a juvenile runaway;
Kessler’s having given Julie a “nympho sex slave diploma”; and
Kessler’s and Julie’s having given Kelsey her own vibrator.
Kessler argues that his trial counsel should have objected
to this extraneous evidence as irrelevant and prejudicial, and
that he should have requested limiting instructions with respect
to its use at trial. Kessler fails to acknowledge that, under
TEX. CODE. CRIM. PROC. art. 38.37 § 2, such extraneous evidence is
more often admissible in cases involving sexual assaults of
children, notwithstanding Texas’s normal rules of evidence. See,
e.g., O’Canas v. State, 140 S.W.3d 695, 698 (Tex. App. 2004)
(permitting evidence of exposure of child victim to “corrupt
lifestyle”); McCoy v. State, 10 S.W.3d 50, 54 (Tex. App. 1999)
(art. 38.37 effectively supersedes prior precedent holding that
“background” evidence is not admissible). Although it is
possible that certain evidence introduced at Kessler’s trial was
inadmissible even under the expanded standard of art. 38.37,
Kessler has not demonstrated that counsel performed deficiently
by making a strategic decision to refrain from making repetitive
objections to such evidence, see United States v. Haese, 162 F.3d
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359, 364 (5th Cir. 1998) (28 U.S.C. § 2255 case) (citing
Strickland v. Washington, 466 U.S. 668, 689 (1984)), or by
declining to call additional attention to such evidence by
seeking limiting instructions. See, e.g., Ali v. State, 26
S.W.3d 82, 87 (Tex. App. 2000). Kessler also has not established
that he was prejudiced by counsel’s failures, because he has not
shown that such objections or limiting instructions would have
resulted in a different outcome at trial. See Strickland, 466
U.S. at 692. Kessler has not shown that the state courts
unreasonably applied federal law in rejecting these ineffective-
assistance claims. See 28 U.S.C. § 2254(d)(1).
Although the magistrate judge granted Kessler a COA on the
substantive issue “whether Kessler was denied due process or a
fair trial through the introduction of extraneous offenses at
trial,” a review of the record reflects that Kessler did not
raise such a substantive claim in the district court, either in
his 28 U.S.C. § 2254 petition or his lengthy reply brief.
Notwithstanding the COA, such claim is not properly before this
court on appeal. See Roberts v. Cockrell, 319 F.3d 690, 695 (5th
Cir. 2003).
The judgment is AFFIRMED.