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King v. Davis

United States District Court, W.D. Texas, Austin Division

January 6, 2010

DAVID JOLLONE KING
v.
LORIE DAVIS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates.

         Petitioner is pro se and has paid the filing fee in this matter. Before the Court are Petitioner's Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Docket Entry “DE” 1), his Memorandum in support of his application (DE 2), Respondent's Answer (DE 22), and Petitioner's Traverse (DE 26) and Petitioner's additional Traverse (DE 29). For the reasons set forth below, the undersigned recommends that Petitioner's Application for Writ of Habeas Corpus be denied.

         STATEMENT OF THE CASE

         Respondent has custody of Petitioner pursuant to a judgment and sentence imposed by the 427th District Court of Travis County, Texas. A jury found Petitioner guilty of capital murder and the trial court sentenced him to a term of life imprisonment without the possibility of parole. In his habeas petition Petitioner asserts he was denied his right to due process and a fair trial and that he was denied his right to the effective assistance of trial and appellate counsel.

         BACKGROUND

         A. Factual background

         The following facts are taken from the Texas Court of Appeals' decision in Petitioner's appeal:

On January 6, 2010, Jonathan Stanchel drove his passenger, Justin Mendez, to an address Mendez requested. They parked and waited in the car. Appellant and another man, Daniel Byrd, approached the car, but Mendez would not allow Byrd into the car because Byrd had recently robbed him. Appellant got into the backseat of the car on the driver's side, behind Stanchel. What happened next is the subject of conflicting testimony.
Stanchel testified that the man who got into the car put a gun against Stanchel's head and said, “Give it up, ” which Stanchel took to mean that he should surrender property. Stanchel instead reached for the car door and heard the gun fire. This shot apparently grazed Stanchel, as he had a gunshot wound on the back of his head near his right ear. He heard two more gunshots as he fled. Police responding to a report found passenger Mendez dead in the car with two gunshot wounds.
Appellant testified that he did not have a gun that night. He said that Mendez pulled a gun and threatened him. Appellant said that he grabbed the gun, struggled with Mendez, and a shot went off. Appellant testified that he pulled the gun away from Mendez and shot twice, then returned to his vehicle. Appellant said he was gripping the gun so tightly that he bled. Appellant denied planning to rob Mendez and said that the shooting happened in the moment.
Other witnesses who rode with appellant and Byrd to the meeting place testified that appellant and Byrd had a conversation that included whether appellant had a “burner, ” which the witnesses took to mean a gun. Joshua Dennis recalled appellant saying that he had a burner, Justin Wilson recalled appellant nodding, and Jamal Stevens remembered appellant indicating he had a gun. Dennis, Wilson, and Stevens also recalled appellant and Byrd discussing “hitting a lick, ” which they said can mean many things including a drug deal or a robbery. Dennis and Stevens said they did not take that discussion seriously, however, because Byrd took money to the other car and they did not see a gun beforehand. The three companions also testified that, immediately after the shooting, Byrd returned to the car saying that appellant had started shooting. Wilson testified that appellant said, “I got nervous, I got nervous, so I let off a couple shots.” Byrd feared that people would seek revenge against him because he had previously robbed Mendez.
Two men who were in jail with appellant testified that he spoke to them about the incident. One said that appellant told him that he and Byrd went to rob a man, the man moved, and the gun went off. Another said that appellant told him he shot a man when a drug deal and robbery went bad because the man would not give up his stuff. Stanchel testified that Mendez did not own or carry a gun and did not have a gun on him the night he was killed.

King v. State, No. 03-12-00105-CR, 2014 WL 1691642, at *1 (Tex. App.-Austin Apr. 25, 2014, pet ref'd).

         B. Petitioner's state court criminal proceedings

         A grand jury indictment returned April 12, 2010, charged Petitioner with one count of capital murder, alleging Petitioner caused the death of Justin Mendez by shooting him with a firearm in the course of committing or attempting to commit a robbery. (DE 23-37 at 8). Petitioner was appointed counsel to represent him in his criminal proceedings. (DE 23-37 at 9). Mr. Stanchel testified for the State; Mr. Byrd did not testify at Petitioner's trial. (DE 23-6 at 25-54; DE 23-8 at 59-63, 104-06). At the close of the State's case-in-chief, Petitioner's counsel moved for a directed verdict of acquittal based on a failure to identify the victim. (DE 23-8 at 19-21). Petitioner testified at his trial. (DE 23-8 at 25-49). Petitioner denied having a weapon on the night in question[1] and denied making a statement that he intended to commit a robbery. (DE 23-8 at 29). Petitioner testified that he shot the victim in self-defense with the victim's gun. (DE 23-8 at 32-38).

         The jury returned a verdict of guilty on the charge of capital murder as alleged in the indictment. (DE 23-37 at 20). The trial court sentenced Petitioner to the statutory term of life in prison without the possibility of parole. (DE 23-37 at 26).

         Petitioner appealed his conviction through appointed counsel. Petitioner asserted the trial court erred by denying his motion for a new trial without conducting an evidentiary hearing; that his right to a fair trial was compromised because he was in a leg brace and a sheriff's deputy sat near him when he testified; that the trial court erred by overruling his objection to statements in the prosecutor's closing argument; and that the trial court erred by failing to sua sponte include a jury instruction on the lesser-included offense of felony murder. (DE 23-16). The Texas Court of Appeals denied relief and the Texas Court of Criminal Appeals refused a petition for discretionary review. King v. State, No. 03-12-00105-CR, 2014 WL 1691642, at *1 (Tex. App.-Austin Apr. 25, 2014, pet ref'd).

         Petitioner filed an application for a state writ of habeas corpus. (DE 23-7 at 40-57). Petitioner asserted he was denied his right to due process and a fair trial because “69 [prospective] jurors of 70 indicated they could not presume the appellant innocent.” (DE 23-37 at 45). Petitioner argued he was denied his right to due process and a fair trial because the trial court denied his motion to include a lesser-included offense instruction on voluntary manslaughter. (DE 23-37 at 49). Petitioner also asserted he was denied his right to due process and a fair trial because the court “allowed the State to violate Rule of Evid. 614.” (DE 23-37 at 51). Petitioner asserted he was denied his right to the effective assistance of counsel because his attorney: “failed to object to the presumptive inference instruction in the charge, ” (DE 23-37 at 53); failed to challenge the insufficiency of the evidence by requesting a directed verdict, (DE 23-37 at 56); failed to request a felony murder instruction, (DE 23-37 at 47); and because appellate counsel failed to raise insufficiency of the evidence. (DE 23-37 at 57). Petitioner further argued he was denied his right to due process because the trial court improperly instructed the jury. (DE 23-37 at 55).

         The state trial court made findings of fact and recommended that the application for habeas relief be denied. (DE 23-37 at 151-52). The trial court found and concluded:

3. Stanchel testified that he and Mendez were sitting in Stanchel's car when applicant got into the back seat, said “Give it up, ” and fired three shots when Stanchel tried to jump out of the car. One shot grazed Stanchel's head, and Mendez was found dead in the car with two bullet wounds.
4. Applicant claimed that Mendez had the gun and threatened him with it, but applicant managed to take it away and shoot him. He denied ever trying to rob anyone. However, some of applicant's companions said he had the gun and planned a robbery.
5. Applicant contends his jury panel was biased because only one member said that he could presume applicant was innocent, that he should have received an instruction on the lesser included offense of manslaughter, that the jury instruction defining “intentionally” was incorrect, and that the prosecution had violated The Rule. All of these contentions needed to be raised on appeal since they depend on the reporter's record.
6. Applicant contends his trial counsel was ineffective because he did not request an instruction on felony murder, should have objected to the jury charge definition of intent, and did not challenge the sufficiency of the evidence to show applicant intended to kill Mendez. The evidence did not support an instruction on felony murder because it showed applicant either intentionally fired the shots which killed Mendez during a robbery, or was defending himself from Mendez' use of unlawful deadly force. The instruction on intent tracked the Penal Code definition, so was not objectionable. Finally, Stanchel's testimony supported the finding that applicant intentionally killed Mendez in the course of a robbery.
7. Finally, Applicant contends appellate counsel should have challenged the sufficiency of the evidence to show an intent to kill. That evidence was sufficient, as set out previously.

(DE 23-37 at 151-52). The Texas Court of Criminal Appeals denied relief without written order. (DE 23-34).

         C. Petitioner's claims for federal habeas relief

         In his federal habeas action, Petitioner asserts he is entitled to relief because

1. He was denied his right to a fair trial by an impartial jury.
2. The trial court denied his request for a jury instruction on a lesser-included offense of manslaughter.
3. The trial court erred by permitting the State's witnesses to testify in violation of Texas Rule of Evidence 614.
4. The trial court erred “by including the invalid presumptive/conclusive inference on intent” in the charge to the jury.
5. There was insufficient evidence to sustain his conviction.
6. He was denied his right to the effective assistance of counsel because:
(a) his trial counsel did not apprise the jurors of the felony murder doctrine or request a jury instruction on felony murder;
(b) trial counsel failed to object to the presumptive/conclusive inference instruction in the charge to the jury;
(c) trial counsel failed to request a directed verdict based on insufficient evidence of guilt; and
(d) his appellate counsel was unconstitutionally ineffective because he failed to assert an insufficiency of the evidence claim in Petitioner's appeal.

Petitioner seeks relief in the form of “acquittal.” Alternatively, he asks the Court to reverse his conviction and remand the matter for a new trial or to “reform” his conviction to the lesser-included offense of murder. (DE 1 at 7).

         Respondent contends that some of Petitioner's claims are procedurally barred and that all of his claims are without merit. Specifically, Respondent argues that Petitioner's claim regarding the sufficiency of the evidence is unexhausted and procedurally defaulted because Petitioner did not raise this claim in his appeal or in his state action for habeas relief. (DE 22 at 2 n.1 & 5 & 7).

         Respondent contends that Petitioner's claim regarding jury bias is barred because he procedurally defaulted this claim in the state courts by failing to raise the claim at trial and in his appeal. (DE 22 at 14).

         In his replies to the response to his petition, Petitioner allows: “The petitioner would concur to the dismissal of Three, Five, Six (a & c), & Seven [presumably claim 6(d)] at this time.” (DE 26 at 1 & DE 29 at 1). In his replies Petitioner argues only the merits of claims 1, 2, 4, and 6(b). (DE 26 & DE 29). Because Petitioner allows that his third and fifth claims, and portions of his ...


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