United States District Court, E.D. Texas, Sherman Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE.
Report and Recommendation of the Magistrate Judge (the
“Report”) (Dkt. 23), which contains her findings,
conclusions, and recommendation for the disposition of
Pardee's Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (Dkt. 1), has been presented for
consideration. The Report recommends that the Petition be
denied and the case dismissed with prejudice. Pardee has
filed written objections (Dkt. 25). Having made a de
novo review of the objections, the court concludes that
the findings, conclusions, and recommendation of the
Magistrate Judge are correct.
first objects to the Magistrate Judge's conclusion that
sufficient evidence supports his conviction for burglary of a
habitation under Texas Penal Code Section 30.02(a).
See Dkt. 25 at 1. He contends the State produced no
evidence of an essential element of the crime: entry of a
habitation. This argument lacks merit.
well settled in Texas that a defendant's unexplained
possession of recently stolen property permits an inference
by the fact-finder that the defendant is the person who stole
the property. See, e.g., Poncio v. State, 185 S.W.3d
904, 905 (Tex. Crim. App. 2006) (burglary); Sutherlin v.
State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984)
(larceny); Hardesty v. State, 656 S.W.2d 73, 76-77
(Tex. Crim. App. 1983) (larceny); Willis v. State,
55 S.W. 829, 829 (Tex. Crim. App. 1900) (burglary). When a
defendant offers an innocent explanation for his possession
of recently-stolen property, it is up to the fact-finder to
determine whether the explanation is true or reasonable.
See Middleton v. State, 187 S.W.3d 134, 139 (Tex.
case, there was no dispute that Pardee was found in
possession of property stolen in a burglary mere hours after
the crime occurred. See Dkt. 6-7 at 108-09, 112. At
trial, Pardee attempted to provide an innocent explanation
for his possession of the property. He asserted that he had
received some of the items from the true culprit, Bobby
Clinton, as repayment of a debt. See Id . at 107-08,
112. Pardee maintained that he had purchased the remaining
items with the intent to return them to the victim and,
thereby avoid suspicion in the burglary. See Id . at
113. However, Pardee's explanation was uncorroborated and
improbable. Under the circumstances, the jury was entitled to
disbelieve Pardee's explanation and find him guilty of
the burglary charge. P ardee's remaining objections
challenge the Magistrate Judge's conclusion that he
failed to demonstrate ineffective assistance of counsel based
on (1) his attorney's alleged “failure to convey a
proper plea agreement” and (2) counsel's decision
not to subpoena Clinton. Dkt. 25 at 1. As the Magistrate
Judge noted, Pardee's ineffective assistance claims are
governed by the familiar two-prong standard in Strickland
v. Washington, 466 U.S. 668, 687 (1984), which requires
a defendant to show both deficient performance by counsel and
prejudice to the defense. Pardee fails to carry this burden.
respect to counsel's performance during the plea
bargaining process, Pardee complains that counsel only
managed to negotiate a plea arrangement under which Pardee
was required to plead guilty to charges of burglary of a
habitation and forgery in exchange for the State's
recommendation of thirty (30) year and twenty (20) year
sentences, respectively. See Dkt. 25 at 1. Pardee
contends that since the State ultimately dismissed the
forgery charge, counsel should have obtained a plea offer
that did not require entry of a guilty plea or punishment on
the forgery charge. See Id . Pardee also asserts
that, had counsel obtained such an offer, he would have
accepted it rather than proceed to trial. See Id .
But Pardee provides no indication that the State would have
been amenable to a plea deal involving a guilty plea and
sentence on the burglary charge alone, or that the trial
court would have accepted such an offer. This purely
speculative claim warrants no habeas relief. See Ross v.
Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (holding
that mere conclusory allegations, which are unsupported and
unsupportable by anything else contained in the record, do
not raise a constitutional issue in a § 2254
Pardee did not challenge his counsel's failure to
negotiate a more favorable plea offer in his Petition.
Rather, he argued that counsel withheld ten (10) year and
fifteen (15) year plea offers by the State until after the
applicable deadlines for acceptance had passed. See
Dkt. 1 at 9. The Magistrate Judge considered, and rightly
rejected, this argument as unsupported by the record. See
Estelle, 694 F.2d at 1011-12. Pardee's new argument
is not subject to the court's federal habeas review.
See Rule 2(c) of the Rules Governing Section 2254
Proceedings for the United States District Courts.
Pardee's final objection, he asserts that his
counsel's decision not to subpoena Clinton constituted
prejudicially deficient performance. See Dkt. 25 at
1. In order to demonstrate the required Strickland
prejudice in the context of counsel's failure to call a
witness, a defendant must show not only that the allegedly
missing witness's testimony would have been favorable,
but also that the witness would have testified at trial.
See Alexander v. McCotter, 775 F.2d 595, 602 (5th
Cir. 1985) (citing Boyd v. Estelle, 661 F.2d 388,
390 (5th Cir. 1981)). Pardee offers nothing more than
speculation that Clinton would have testified favorably to
the defense. Pardee conjectures that Clinton would have
admitted to committing the burglary himself, without
Pardee's involvement, thus corroborating Pardee's
explanation for possession of goods recently-stolen from the
victim's residence. But Pardee's conclusory
allegations about the substance of Clinton's testimony
are not enough to resolve the issue. Furthermore, the court
agrees with the Magistrate Judge's assessment that
Clinton was unlikely to have testified in the manner
suggested by Pardee because such testimony would have exposed
Clinton to criminal liability.
also asserts, for the first time and without explanation,
that Clinton's availability at trial would have rendered
purportedly favorable hearsay statements admissible at trial.
This argument is not only speculative, but contrary to the
rules of evidence. See Tex. R. Ev. 802, 803, 804.
Thus, Pardee fails to show counsel's failure to subpoena
Clinton was prejudicial.
light of the foregoing, it is ORDERED that Pardee's
objections (Dkt. 25) are OVERRULED.
further ORDERED that the Report and Recommendation of the
Magistrate Judge (Dkt. 23) is ADOPTED.
further ORDERED that the above-styled Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) is
DENIED and ...