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Jackson v. Davis

United States District Court, N.D. Texas, Dallas Division

March 15, 2017

TADAREOUS JACKSON, ID # 1739419, Petitioner,
v.
LORIE DAVIS, [1] Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          ORDER

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         FINDINGS, CONCLUSIONS, AND RECOMMENDATION

         Pursuant to Special Order 3-251, this case has been referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the petition for writ of habeas corpus under 28 U.S.C. § 2254 should be DENIED with prejudice.

         I. BACKGROUND

         Tadareous Jackson (Petitioner) challenges his convictions for aggravated robbery. The respondent is Lorie Davis, Director of TDCJ-CID (Respondent).

         A. State Proceedings

         On June 9, 2009, the State indicted Petitioner for aggravated robbery in Cause Nos. F09-53871-L and F09-53872-L. (Docs. 11-14 at 6, 11-17 at 5.)[2] Counsel was appointed to represent him. (Doc. 11-14 at 8.) Before trial, on July 20, 2010, and October 21, 2010, Petitioner filed pro se motions to dismiss counsel and to appoint new counsel. (Docs. 11-14 at 10-11, 59.) Before jury selection began, Petitioner brought the motions to the court's attention. (Doc. 11-7 at 8.) He said that he wanted counsel to file some unspecified motions, that counsel told him about a plea offer from the State in return for his cooperation, and that and the prosecutor were friends. (Id. at 8-9.)

         Petitioner said:

I told Mr. Huff several times. I don't want to proceed with him as my lawyer. I went about it the right way, to my knowledge, by filing motions . . .. And I just want to know have the Court been notified of those motions. I feel that if I have to stand trial with Mr. Huff, I rather stand trial alone by myself.

(Id. at 9.) The court said that Petitioner could hire an attorney, but counsel would remain on the case until he hired other counsel. (Id. at 9-10.) Petitioner said that he did not want to stand trial with counsel, who had not sent him any paperwork regarding his case. (Id. at 10-11.) The court again stated that counsel would continue representing Petitioner and that the case would proceed to trial that day. (Id. at 11.) Petitioner asked if he could hire an attorney and if the court would appoint another attorney. (Id. at 11.) Counsel and the prosecutor stated they were not close friends, they never tried a case together, and they had not seen each other outside of court. (Id. at 12.) The court reiterated its ruling that counsel would continue to represent him. (Id.) Petitioner asked whether retained counsel could represent him beginning the next day, if his family hired counsel. (Id. at 14.) The court stated that he had already had time to retain counsel and that the trial would begin that day. (Id. at 14-15.)

         Petitioner pleaded not guilty and was tried before a jury in Criminal District Court No. 5 of Dallas County, Texas, on February 22-24, 2011. (Doc. 11-6 at 1.) The evidence at trial was summarized by the state appellate court as follows:

Erika Reyes and Linda Leach worked at Hillburn Hills apartment complex. Reyes was the business manager and Leach was a leasing agent. On the morning of March 9, 2009, a man, who both identified at trial as appellant, came into the office and asked about leasing an apartment. Leach gave him a brochure, and appellant said he would be back later. About forty-five minutes later, appellant returned and asked for an application. Leach gave him an application and thought he had left. She and Reyes were standing in Leach's office when appellant appeared, pointed a gun at them, and demanded they give him their purses. Leach gave him her purse, but Reyes said her purse was in her office. Appellant told Leach to get on the floor and not move or look at him. He held the gun on Reyes and followed her to her office, tapping her with the gun on the back of her head as they walked. Once Reyes gave him her purse, appellant told her not to come out of the office, and he left. Reyes locked her office door and called the police. Appellant went back through Leach's office and touched Leach on her “private” before running out the door. Leach waited a few minutes and then, like Reyes, called the police. Both Reyes and Leach testified they feared for their life during the encounter.
Cedric Spencer was waiting at a nearby bus stop when he saw a man walking “pretty fast” carrying “junk in his arms.” The man stopped by a red car with an old gray hood; Spencer said it looked like a “fix-up job.” The man then got into the car and drove off. A few minutes later, the police pulled up and asked if he had seen anybody or anything. Spencer told him what he had just seen. Evidence at trial showed that the mother of appellant's child owned a red car with a gray hood.
On the day of the robbery, maintenance workers at the apartment complex found the four-page application form that Leach said she had “marked up” and gave to appellant. The document was turned over to police. A fingerprint expert testified that a fingerprint on the document belonged to appellant.
Eighteen days after the robbery, Detective Doug Jones separately showed Leach and Reyes photographic arrays; appellant's photograph was included. Reyes testified the officer showed her six pictures one by one, and she tentatively identified photo five, which was appellant's, saying he “looks familiar” but “not sure.” Leach narrowed it to two photographs, one of which was appellant, and said, it “looks more like him.” At trial, Leach said she had “no doubt” appellant was the person who robbed her.

Jackson v. State, Nos. 05-11-01116-CR & 05-11-01117-CR, 2012 WL 4097192, at *1 (Tex. App.- Dallas Sept. 19, 2012).

         Leach only gave out one application form that day. (Id. at 70.) She testified that State's Exhibit No. 3 was the application she gave to Petitioner. (Id. at 68-70.) She recognized it based on markings she made on it when she gave it to Petitioner. (Id. at 69-70.) Maintenance workers found the application on the ground at the apartment complex, but she did not know which worker found the application. (Id. at 68, 80.) She thought it had been found before the police arrived, but she was not certain. (Id. at 81.) She did not know if the application was given to the first police officer who arrived. (Id.) She did not remember whether the police retrieved the application when they came to the apartment complex a second time. (Id. at 86.)

         Nicole Mejia, Dallas Police Department crime technician, testified that she went to the apartment complex and picked up a leasing form (State's Exhibit No. 3) from the office. (Id. at 87-88.) She did not remember who gave her the form. (Id. at 92.) She did not know who handled the form before she obtained it. (Id.) She wrote her badge number and element number on the envelope in which the leasing form was placed. (Id. at 88.) She processed the form for fingerprints and sent it to the crime scene photograph lab for photos of the possible fingerprints. (Id. at 89.) The photos were sent to Peter Salicco, a Dallas Police Department fingerprint expert, who identified a fingerprint in the photos as Petitioner's. (Id. at 97, 100, 102.)

         The court had granted counsel's pretrial motion for the appointment of a fingerprint expert. (Doc. 11-14 at 56-58.) However, no expert testified for the defense. Counsel had also filed a motion for a hearing regarding the eyewitnesses' identification of Petitioner in the photo lineups. (Id. at 22.) Detective Jones had included Petitioner's photograph in the photo lineups because he was a suspect. (Doc. 11-8 at 23-24.) The court conducted a pretrial hearing on the matter and overruled counsel's objections to the identification. (Id. at 6, 33.) At trial, counsel cross-examined Leach and Reyes at length and questioned them about their identification of Petitioner. (Id. at 48-60, 72-84, 85.)

         The jury convicted Petitioner, and the trial court sentenced him to 60 years' confinement in each case, to run concurrently. (Docs. 11-14 at 79, 11-17 at 22.) The judgments were affirmed on appeal. Jackson, 2012 WL 4097192. The Texas Court of Criminal Appeals refused petitions for discretionary review. Jackson v. State, PD-1473-12 & PD-1474-12 (Tex. Crim. App. Feb. 6, 2013). Petitioner's state habeas applications, Dated: January 24, 2014, were received by the state court on February 12, 2014. (Docs. 12-15 at 5, 21, 12-18 at 6, 22.) The applications were denied without written order. (Docs. 12-13, 12-16); see Ex parte Jackson, WR-81, 506-04 & WR-81, 506-05 (Tex. Crim. App. Dec. 17, 2014).

         B. Substantive Claims

         Petitioner's habeas petition, received on February 17, 2015, raises the following grounds:

(1) He was denied his Sixth Amendment right to self-representation;
(2) Trial counsel was ineffective for failing to:
(a) object to fingerprint evidence based on chain of custody;
(b) object to the State's fingerprint expert;
(c) investigate fingerprint ...

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