Reported / Citable
Background
Freddie Lee Smith is serving life without parole for capital murder in Bastrop County, Texas. A jury convicted Smith in 2022 of participating in the murder-for-hire killing of a pregnant victim-witness counselor. The prosecution alleged that Austin police officer Von Trey Clark, the father of the victim’s unborn child, enlisted Kevin Watson and Smith after the victim declined to have an abortion. Smith’s conviction was affirmed on direct appeal, and the Texas Court of Criminal Appeals denied his state habeas application without written order.
Smith then sought relief under 28 U.S.C. § 2254, alleging that trial counsel was ineffective. He argued that counsel inadequately challenged Watson’s accomplice testimony, failed to seek an accomplice-witness instruction for Watson’s wife Kyla Fisk, failed to make adequate use of cellphone-location evidence, and failed to object to Clark’s judicial confession and factual plea on hearsay and Confrontation Clause grounds.
The Court’s Holding
Judge Robert Pitman denied the petition and denied a certificate of appealability. Because the Texas Court of Criminal Appeals had rejected the same claims on the merits, AEDPA required Smith to show that the state decision was contrary to, or an unreasonable application of, clearly established Supreme Court law, or rested on an unreasonable factual determination. The court concluded that Smith did not meet that demanding standard under AEDPA and Strickland.
The court found that defense counsel did challenge Watson’s credibility in closing and that the jury received an accomplice-witness corroboration instruction. It also concluded that non-accomplice evidence—including phone records, recorded calls, and firearm-related evidence—connected Smith to the murder. Fisk was not an accomplice under the applicable state-law analysis merely because she allegedly tampered with evidence after the offense. Smith identified no available, favorable phone-data expert whose testimony counsel should have presented, and the trial record showed counsel elicited testimony that Smith’s known phone did not use towers outside Houston. Finally, the record showed counsel did object to Clark’s plea materials on hearsay and Confrontation Clause grounds at the pretrial bond hearing; those materials were not introduced at trial.
Key Takeaways
- A federal habeas petitioner challenging a state merits decision must satisfy AEDPA’s highly deferential standard in addition to Strickland.
- Defense counsel’s attack on an accomplice witness and a proper corroboration instruction undermined Smith’s claim that Watson’s testimony went unchallenged.
- Claims based on an uncalled expert require evidence identifying the witness, availability, proposed favorable testimony, and resulting prejudice.
Why It Matters
The decision illustrates the difficulty of relitigating trial-strategy and ineffective-assistance claims in federal habeas after state-court merits review. Assertions that counsel should have pressed different evidentiary theories will not suffice without a record showing deficient performance and a substantial likelihood of a different result.