Ronald Blake Fears v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

A jury convicted petitioner of continuous sexual abuse of a child and related offenses based on the uncorroborated testimony of his teenaged stepdaughter. To bolster her credibility, the State presented without objection the testimony of two law enforcement officers, a Child Protective Services investigator, and two lay witnesses that they believed that she was telling the truth about the sexual abuse. Texas appellate courts strictly prohibit this opinion testimony and have consistently reversed convictions because it was admitted over objection or, alternatively, because counsel was ineffective by failing to object to it. The state habeas trial court concluded that trial counsel performed deficiently and that petitioner was prejudiced and should receive a new trial. A divided Texas Court of Criminal Appeals did not disturb the findings of deficient performance but concluded without analysis that petitioner did not prove prejudice. The Fifth Circuit recognized the “compelling” nature of petitioner’s ineffectiveness claim but affirmed on the basis that “double deference” was owed to the TCCA’s conclusion that there was “no prejudice.” The Fifth Circuit held that a reasonable jurist could conclude that the improper bolstering “gave the jury nothing it didn’t already have” in determining the child’s credibility. The questions presented are: I. Whether 28 U.S.C. § 2254(d)(1) requires that a federal court apply “double deference” to a state court’s legal conclusion