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Jones v. Director, TDCJ-CID

United States District Court, E.D. Texas, Tyler Division

March 27, 2017

KEITH EARL JONES, #1699601
v.
DIRECTOR, TDCJ-CID

          ORDER OF DISMISSAL

          Ron Clark, United Slates District Judge

         Petitioner Keith Earl Jones, an inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus challenging his Anderson County conviction for the felony offense of driving while intoxicated, in violation of the state laws of Texas. After a jury trial in which a guilty verdict was returned, Petitioner was sentenced to a sentence of sixty years in prison.

         The federal petition was referred to United States Magistrate Judge K. Nicole Mitchell, who issued a Report and Recommendation on January 25, 2017, concluding that the petition for a writ of habeas corpus should be dismissed with prejudice. (Dkt. #20). Petitioner filed objections to the Report and Recommendation. (Dkt. #25).

         In his first objection, Mr. Jones re-urges his claim that he was afforded constitutionally ineffective assistance of counsel. See Objections at 2. Mr. Jones generally argues that his counsel was ineffective and that “records clearly establishes that the petitioner was not allowed to participate in the caricature labeled an evidentiary hearing in the trial court”. Id. He further argues that trial counsel's affidavit was unreliable and that he should be permitted to introduce his own evidence.

         Mr. Jones repeats the argument from his petition that his trial attorney provided deficient voir dire performance and that his performance resulted in his conviction. See Objections at 2. In Grounds four and five of his habeas petition, Jones argued that his trial attorney provided ineffective assistance of counsel during voir dire. See Fed. Writ Pet. at 6; Petitioner's Memorandum at 14-17. He claims counsel failed to object to a misstatement of law regarding the legal definition of intoxication and did not properly educate the jury about its burden of proof and the definition of intoxication. See Petitioner's Memorandum at 16.

         During the State's voir dire, counsel explained the offense of driving while intoxicated and the manners that it could prove intoxication. 2 RR 16-22. Counsel also compared the differences in a .08 blood alcohol concentration, loss of use of normal mental faculties, and loss of use of normal physical faculties. 2 RR 22-26.

         Jones's attorney reiterated the requirements that the State must prove to obtained a driving while intoxication conviction. Counsel explained that it is the jury's job to determine normal use after hearing the evidence. 2RR 67-70. The jury charge provided the definition of intoxication and the elements of the offense, and defense counsel argued to the jury that the State failed to prove any evidence of physical or mental impairment by the introduction of alcohol into his system. CR at 125-29; 4 RR 125-26.

         Jones has failed to establish the State's voir dire was so objectionable that trial counsel lacked any strategic reason for not objecting or that he inadequately conducted his voir dire. No error is discernable. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (holding that conclusory allegations are insufficient to obtain habeas relief); Lovett v. State of Fla., 627 F.2d 706, 709 (5th Cir. 1980)(holding that the failure to object to admissible evidence does not constitute ineffective assistance of counsel). Proof of intoxication under the Texas statute provides means, including proof of loss of “normal use of mental or physical faculties” or “an alcohol concentration of 0.08.” Tex. Penal Code §49.01(2); cf. Petitioner's Memorandum at 15.

         Further, a trial counsel's method of voir dire is a strategic question, thus it “cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be ‘so ill chosen that it permeates the entire trial with obvious unfairness.'” Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir.1995). Considering that the jury was correctly instructed with regard to the law, including the State's burden, the elements of the crime and the jury's role in determining the facts, Jones cannot establish that his attorney performed deficiently or that his performance caused harm. Strickland, 466 U.S. at 689. The state court's decision to reject his claims that trial counsel provided ineffective assistance of counsel during voir dire was not contrary to, and did not involve an unreasonable application of clearly established federal law. These claims are meritless, and should be dismissed with prejudice.

         Mr. Jones also requests an evidentiary hearing in order to present additional evidence regarding trial counsel's handling of voir dire. See Objections at 2. Mr. Jones, however, may not produce evidentiary support in federal courts that he did not present to the state courts. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Further, Mr. Jones has failed to demonstrate that counsel was ineffective for the manner in which he conducted voir dire. Thus, this claim lacks merit.

         Mr. Jones also re-urges his argument that his trial attorney deficiently challenged certain evidence offered during the trial and that such a challenge would have altered the result of his trial. See Objections at 2. Mr. Jones further claims that court records prove his “trial was a farce.” See id.

         Mr. Jones argued in his habeas petition that his trial attorney should have objected to the State's discussion of an unreliable version of retrograde extrapolation evidence. See Fed. Writ Pet. at 6; Petitioner's Memorandum at 18-20. He further claims that the State's attorney “invited the jury panel to perform its own, barnyard version of retrograde extrapolation” and permitted an officer to testify despite his lack of qualification to testify as an expert on the subject. Petitioner's Memorandum at 19-20.

         Trial counsel filed an affidavit stating that he did not recall a formal retrograde extrapolation analysis but believed he did make an objection. SHCR-02 (EventID 2545369) at 4.

         The trial court's findings establish that counsel unsuccessfully objected to testimony regarding the effects of alcohol from the paramedic at the scene but did not object to testimony from the trooper regarding Jones's .07 blood alcohol or that he believed he was intoxicated at the time of the accident. Id. at 1-2. Instead, trial counsel vigorously examined the officer the basis for his belief that ...


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