IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`LUFKIN DIVISION
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`ROBERT EARL SCHIELE
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`VS.
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`§
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`§
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`DIRECTOR, TDCJ-CID
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` §
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`CIVIL ACTION NO. 9:16cv139
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` ORDER OVERRULING OBJECTIONS AND ADOPTING
`THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
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`Petitioner Robert Earl Schiele, proceeding pro se, filed the above-styled petition for writ of
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`habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a conviction for arson.
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`The court previously referred this matter to the Honorable Zack Hawthorn, United States
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`Magistrate Judge, for consideration pursuant to applicable orders of this court. The Magistrate Judge
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`has submitted a Report and Recommendation of United States Magistrate Judge recommending that
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`the petition be denied.
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`The court has received and considered the Report and Recommendation of United States
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`Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and
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`Recommendation. The court must therefore conduct a de novo review of the objections in relation
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`to the pleadings and the applicable law.
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`Petitioner asserts four grounds for review: (1) the trial court erred by not instructing the jury
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`on the law of parties; (2) there was insufficient evidence to support the conviction; (3) there were
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`errors during petitioner’s state habeas proceeding and (4) petitioner received ineffective assistance
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`of counsel. The Magistrate Judge analyzed each ground for review and concluded each ground for
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`review was without merit under the applicable legal standard. Petitioner objects to the Magistrate
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`Judge’s conclusion regarding each ground for review.
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`The Law of Parties
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`Petitioner asserts that as both he and his common law wife were charged with arson, the jury
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`should have been given an instruction regarding the law of parties. The Magistrate Judge rejected
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`this ground for review for two reasons. First, the Magistrate Judge concluded petitioner suffered no
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`prejudice as a result of the instruction not being given because such an instruction broadens, rather
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`than narrows, criminal liability. Second, the Magistrate Judge found the determination by the state
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`habeas trial court that petitioner was not entitled to such an instruction under Texas law was not
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`subject to review in a federal habeas proceeding.
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`In his objections, petitioner complains that because an instruction was not given regarding
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`the law of parties, the jury was able to consider the actions of his wife when deciding whether he was
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`guilty. Despite petitioner’s contention, the Magistrate Judge correctly concluded that an instruction
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`on the law of parties would have permitted the jury to hold him responsible for his wife’s actions as
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`well as his own actions. As a result, the failure to give the instruction could not have resulted in
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`prejudice to petitioner’s case.
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`Insufficient Evidence
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`Petitioner asserts that as the fire was accidental and there was no evidence anyone
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`intentionally started the fire, there was insufficient evidence to support his conviction. After setting
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`forth the standard established by the Supreme Court regarding such claims, see Jackson v. Virginia,
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`443 U.S. 307 (1979), the Magistrate Judge set forth the conclusion by the intermediate appellate
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`court that based upon circumstantial evidence, there was sufficient evidence to permit a reasonable
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`finder of fact to convict petitioner of arson. While the Magistrate Judge acknowledged the jury could
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`have drawn inferences in petitioner’s favor and returned a finding of not guilty, Jackson requires that
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`inferences be drawn in favor of the verdict when a challenge to the sufficiency of the evidence is
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`asserted. Accordingly, the rejection by the state courts of this ground for review was not contrary
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`to, or an unreasonable application of, clearly established federal law.
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`In his objections, petitioner continues to maintain there was no evidence he intentionally set
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`the fire and describes evidence he contends supports his innocence. Despite petitioner’s contention,
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`the intermediate appellate court described in great detail the evidence that supported the jury’s
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`finding. Different inferences could have been drawn from the evidence. However, when, as required
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`by Jackson, the inferences are drawn in favor of the verdict, there was sufficient evidence to support
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`2
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`the conviction.
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`State Habeas Corpus Proceedings
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`Petitioner also complained of what he considers irregularities in connection with his state
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`habeas proceeding. The Magistrate Judge concluded this assertion did not provide petitioner with
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`a basis for relief because federal habeas relief may not be granted based upon errors in state habeas
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`proceedings.
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`In his objections, petitioner complains that the state habeas trial court failed to provide him
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`with an evidentiary hearing and did not order trial counsel to file an affidavit. However, the
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`Magistrate Judge correctly concluded this ground for review does not provide petitioner with a basis
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`for relief in this proceeding. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999).
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`Ineffective Assistance of Counsel
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`Finally, petitioner asserts he received ineffective assistance of counsel because counsel failed
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`to request an instruction regarding the law of parties. The Magistrate Judge concluded that as the
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`state habeas trial court determined petitioner was not entitled to the instruction under state law and
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`as such an instruction would have broadened rather than narrowed petitioner’s liability, counsel’s
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`failure to request such an instruction did not fall below an objective standard of reasonableness and
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`did not cause petitioner to suffer prejudice. See Strickland v. Washington, 466 U.S. 668 (1984).
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`Petitioner disagrees with the Magistrate Judge’s conclusion that the failure to provide an
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`instruction regarding the law of parties did not cause him to suffer prejudice. This contention is
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`without merit because such an instruction could have permitted the jury to hold him responsible for
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`his wife’s actions as well as his own, thereby broadening his liability.
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`ORDER
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`Accordingly, petitioner’s objections are OVERRULED. The findings of fact and
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`conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
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`ADOPTED. A final judgment will be entered in accordance with the recommendation of the
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`Magistrate Judge.
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`In addition, the court is of the opinion petitioner is not entitled to a certificate of
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`appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a
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`judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of
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`appealability requires the petitioner to make a substantial showing of the denial of a federal
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`constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362
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`F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need not demonstate
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`that he would prevail on the merits. Rather, he must demonstrate that the issues are subject to debate
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`among jurists of reason, that a court could resolve the issues in a different manner, or that the
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`questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84.
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`Any doubt regarding whether to grant a certificate of appealability should be resolve in favor of the
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`petitioner. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
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`In this case, petitioner has not shown that the issues presented are subject to debate among
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`jurists of reason. The factual and legal questions raised by petitioner have been consistently resolved
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`adversely to his position and the questions presented are not worthy of encouragement to proceed
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`further. As a result, a certificate of appealability shall not issue in this matter.
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`4
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