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Glover v. Davis

United States District Court, S.D. Texas, Houston Division

March 24, 2017

KENNETH WAYNE GLOVER, TDCJ-CID #1838711 Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         The petitioner, Kenneth Wayne Glover, seeks habeas corpus relief under 28 U.S.C. § 2254. He challenges a state felony conviction for driving while intoxicated, enhanced because it was at least a third offense. The respondent filed a motion to dismiss the petition for failure to exhaust available state court remedies, with a copy of the state-court record. Glover filed a response. (Docket Entries Nos. 15, 21 and 22). Based on careful consideration of the pleadings, the motion and response, the record, and the applicable law, the court grants the respondent's motion and, by separate order, enters final judgment. The reasons are set out below.

         I. Background

         A jury found Glover guilty of the felony offense of driving while intoxicated, third offense or more. (Cause Number 11-06-06204-CR). On January 28, 2013, the jury sentenced Glover to life imprisonment. The Ninth Court of Appeals of Texas affirmed Glover's conviction on March 26, 2014, reforming the judgment after concluding that the evidence was insufficient to prove that Glover had used his vehicle as a deadly weapon. The Texas Court of Criminal Appeals refused Glover's petition for discretionary review on February 4, 2015. Glover filed an application for state habeas corpus relief on January 25, 2016, and the Texas Court of Criminal Appeals dismissed it as noncompliant with Rule 73.1 of the Texas Rules of Appellate Procedure on August 10, 2016.

         On January 29, 2016, this court received Glover's federal petition. Glover contends that his conviction is void because:

         (1) appellate counsel rendered ineffective assistance by failing to raise the following issues on appeal:

a. a voir dire challenge on special issues;
b. the trial court's denial of his motion for continuance;
c. the trial court's improper limitation on direct examination;
d. the State's introduction of a res gestae offense; and
e. the trial court's denial of his motion to strike enhancement;

         (2) the prosecutor withheld favorable information during both the liability and punishment stages of trial;

         (3) the trial court was openly biased in favor of the State; and

         (4) the appellate court's decision was an unreasonable determination of the facts from the record on appeal ...


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