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Murry v. Davis

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

April 10, 2017

FABIEN MURRY #2010276
v.
LORIE DAVIS

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE.

         Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (#1) and Respondent's Answer (#12). Petitioner, proceeding pro se, has paid the filing fee. For the reasons set forth below, Petitioner's application for writ of habeas corpus is denied.

         STATEMENT OF THE CASE

         A. Background

         According to Respondent, the Director has lawful and valid custody of Petitioner pursuant to two judgments and sentences of the 54th District Court of McLennan County, Texas in Cause Nos. 2014-61-C2 and 2014-976-C2. In Cause No. 2014-61-C2, Petitioner was charged by indictment with committing aggravated sexual assault against a child, and an enhancement paragraph alleging Petitioner had a prior conviction in 2002 for possession of methamphetamine, a controlled substance. Ex parte Murry, WR-85, 541-01, SHCR (#13-5) at 112-15. In Cause No. 2014-976-C2, Petitioner was charged by indictment with possessing with intent to deliver, methamphetamine, a controlled substance, weighing between 1 and 4 grams, plus an enhancement paragraph alleging Petitioner had a prior conviction in 2008 for possession of methamphetamine, a controlled substance. Ex parte Murry, WR-85, 541-02, SHCR (#13-10) at 62-63.

         On June 2, 2015, pursuant to a plea agreement, Petitioner pleaded guilty to both causes and true to both enhancement paragraphs and was sentenced to 30 years of imprisonment for each cause, to run concurrently. SHCR-01 (#13-5) at 117-124; SHCR-02 (#13-10) at 65-72. Petitioner did not appeal.

         Petitioner filed an application for a state writ of habeas corpus challenging each conviction on May 6, 2016. SHCR-01 (#13-5) at 18; SHCR-02 (#13-10) at 21. On August 24, 2016, the Court of Criminal Appeals (CCA) dismissed the application challenging the conviction for aggravated sexual assault of a child for failure to comply with Rule 73.1 of the Texas Rules of Appellate Procedure. SHCR-01 (#13-1). On the same day, the CCA denied, without written order, the application challenging the conviction for possession of methamphetamine with intent to deliver. SHCR-02 (#13-6).

         B. Petitioner's Grounds for Relief

         Petitioner raises the following grounds for relief:

         1. He is actually innocent pursuant to Schlup v. Delo, 513 U.S. 298 (1995).

         2. His counsel was ineffective for failing to:

a. advise him of the legal ramifications of his guilty plea;
b. object to the illegal search of his home and the illegal search warrant;
c. subpoena witnesses to testify regarding both the methamphetamine and sexual assault charges;
d. sever his criminal cases.

Pet. (#1) at 6.

         C. Request for Evidentiary Hearing

         Petitioner asserts that his application for habeas relief raises factual questions, which have not been addressed by the state courts and that the state has failed to provide Petitioner with a full and fair hearing concerning his application. Petitioner concludes that he is entitled to an evidentiary hearing to resolve the factual questions left unresolved by the state courts.

         DISCUSSION AND ANALYSIS

         A. The Antiterrorism and Effective Death Penalty Act of 1996

         The Supreme Court has summarized the basic principles that have grown out of the Court's many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington v. Richter, 562 U.S. 86, 97-100 (2011). The Court noted that the starting point for any federal court ...


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