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Moore v. Davis

United States District Court, N.D. Texas, Fort Worth Division

June 2, 2017

TEZELLE MOORE, Petitioner,
v.
LORIE DAVIS, Director, [1]Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          TERRY R. MEANS UNITED STATES DISTRICT JUDGE

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Tezelle Moore, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. FACTUAL AND PROCEDURAL HISTORY

         In February 2011 in Tarrant County, Texas, Case No. 1220521D, Petitioner was indicted for murder in the shooting death of his neighbor, Ernest Davis, (count one) and felon in possession of a firearm (count two).[2] (Adm. R., SH02 11, ECF No. 9-2.) The indictment also contained deadly-weapon and repeat-offender notices. (Id.) In March 2012 Petitioner was re-indicted in Case No. 1276457R for aggravated assault with a deadly weapon (count one) and felon in possession of a firearm (count two). (Id. at 7.) The re-indictment also contained deadly-weapon and repeat-offender notices. (Id.) Petitioner pleaded not guilty and his jury trial commenced on June 25, 2012. The jury found Petitioner guilty of aggravated assault, but it found Petitioner not guilty of being a felon in possession of a firearm. It then violated the Court's instructions by proceeding to find that petitioner did not use or exhibit a deadly weapon, a firearm, during commission of the offense.[3] (Id., Clerk's R. 179-81, ECF No. 9-2.) Thereafter, Petitioner pleaded true to the repeat-offender notice, and the jury assessed his punishment at forty years' confinement. (Id. at 200.) Petitioner appealed his conviction, but the Fourth District Court of Appeals of Texas affirmed the trial court's judgment and, on February 12, 2014, the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review. (Id., Docket Sheet 2, ECF No. 9-3.) Petitioner did not seek writ of certiorari. On December 10, 2014, [4] Petitioner filed a state application for habeas relief challenging his conviction, which was denied by the Texas Court of Criminal Appeals on September 9, 2015, without a hearing on the findings of the trial court. (Id., SH02 & Action Taken, ECF Nos. 9-17 & 9-18.) Petitioner filed his original federal habeas petition on January 5, 2016, [5] and was granted permission to file his amended petition on July 19, 2016. (Pet. 10, ECF No. 1; Order, ECF No. 21; Am. Pet., ECF No. 22.)

         II. ISSUES

         Petitioner raises five grounds for relief in his amended petition. Under grounds one through four, Petitioner asserts that the Texas Court of Criminal Appeals unreasonably applied federal law, as determined by the United States Supreme Court, in concluding-

(1) that the trial court's “supplemental jury instruction” was legally sufficient;
(2) that there was sufficient evidence to support his conviction for aggravated assault;
(3) that his trial counsel was not ineffective by failing to request a lesser-included-offense instruction on deadly conduct; and
(4) that his right to cross-examine witnesses regarding their pending felony criminal cases was forfeited due to ineffective assistance of counsel.

(Am. Pet. 6-7, ECF No. 22.) Under Petitioner's fifth ground, he asserts that the Texas Court of Criminal Appeals abused its discretion by “making an unreasonable determination of the facts, without conducting a ‘sue [sic] sponte' review of the record.”[6] (Id. at 11-13.)

         III. RULE 5 STATEMENT

         Respondent believes that the third ground enumerated above is time-barred but does not allege that the remaining grounds are barred by successiveness, the statute of limitations, or a failure to exhaust state-court remedies. (Resp't's Am. Answer 6-7, ECF No. 25.)

         IV. STATUTE OF LIMITATIONS

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) established a one-year limitations period for state prisoners filing federal habeas petitions. See 28 U.S.C. § 2244(d)(1). The one-year limitations period begins on the latest of several dates. Relevant here is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a state habeas application with respect to the pertinent judgment or claim. Id. § 2244(d)(2).

         Petitioner's judgment of conviction became final upon expiration of the time that he had for filing a petition for writ of certiorari in the United States Supreme Court on May 13, 2014. Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); Sup. Ct. R. 13. Therefore, the statute of limitations began to run the following day and closed one year later on May 13, 2015, absent any tolling. Petitioner's state habeas application, pending from December 10, 2014, through September 9, 2015, tolled limitations 274 days, making his federal petition due on or before February 11, 2016. Thus, his original petition filed on January 5, 2016, was timely. His amended petition, however, filed on July 19, 2016, was not.

         Federal Rule of Civil Procedure 15, which allows a party to amend its pleadings, applies to federal habeas-corpus proceedings. United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002). A supplemental or amended petition must be made within the one-year statute of limitations unless the supplement or amendment relates back to the original petition. Fed.R.Civ.P. 15. While Rule 15(c)(1)(B) provides that an amendment “relates back” when the amendment “asserts a claim that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading, ” the Supreme Court has construed this provision narrowly when applied to federal habeas corpus cases. In Mayle v. Felix, the Supreme Court held that “[a]n amended habeas petition does not relate back (and thereby escape AEDPA's one year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” 545 U.S. 644, 650 (2005).

         Under his third ground, Petitioner claims that the Texas Court of Criminal Appeals unreasonably applied federal law, as determined by the United States Supreme Court, in concluding that his trial counsel was not ineffective in failing to request a lesser-included-offense instruction on deadly conduct. Respondent asserts that this ineffective-assistance-of-counsel claim does not relate back to the original petition because it is a new claim, raising new theories and facts different from those underlying the original claims. (Resp't's Am. Answer 13, ECF No. 23-1.) According to Respondent,

[t]he petition originally filed by [Petitioner] lacked any substance and failed to provide any facts or legal authority [that] would entitle [Petitioner] to relief, or even explain what his allegations were in the context of ineffective assistance of counsel.

(Id.)

         Petitioner, on the other hand, asserts that (all spelling, punctuation, and/or grammatical errors are in the original)-

although this claim set's forth new fact's not mentioned in the original petition these fact's are “tied to a common core of oprative fact's argued in the original petition”, where petitioner Moore argued that because the jury found him not guilty of felon in possession of a firearm, the state failed to prove “every element of the indictment as charged”, therefore violating Petitioner's right's under the due process clause of the 14th Amendment to the United States Constitution. Moreover, petitioner Moore assert's that the new fact's are “tied to” his challenge to the sufficiency of evidence to support the conviction for aggravated assault, because Petitioner did not possess a firearm during the commission of the offense, therefore, in light of this evidence, Petitioner was entitled to a lesser included offense instruction of deadly conduct. Thereby, Petitioner's trial counsel's abandoning the lesser included offense instruction of “deadly conduct” was deficient performance that resulted in Petitioner being convicted of aggravated assault w/ a deadly weapon. Stated differently, this deficient performance violated Petitioner's due process right under the 14th Amendment to the United States Constitution, as well as Petitioner's 6th Amendment.

(Pet'r's Traverse 3-4, ECF No. 29-1 (citations omitted).)

         Petitioner's argument is not persuasive. The Court agrees that the original petition did not contain ground three and that ground three asserts a new claim for habeas relief based on facts that do not relate to or enhance Petitioner's claims in the original petition-i.e., that do not share the “same common core of operative facts.” Accordingly, the claim does not relate back to the original petition and is time-barred.

         V. PROCEDURAL DEFAULT

         Respondent asserts that ground four is procedurally barred from the Court's review because the claim, although raised on appeal, was overruled by the appellate court because it was not preserved for appellate review by a contemporaneous objection. (Resp't's Am. Answer 16-17; Adm. R., Mem. Op. 5-6, ECF No. 9-15.)

         Under the procedural-default doctrine, federal habeas review of a claim is procedurally barred if the last state court to consider the claim expressly and unambiguously based its denial of relief on a state procedural default. Coleman v. Thompson, 501 U.S. 722, 729 (1991). It is well settled that Texas's contemporaneous-objection rule is an independent and adequate state procedural bar to federal habeas review. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977). In Wainwright v. Sykes, the Supreme Court held that, absent a showing of “cause” and “prejudice, ” federal habeas review is barred if the petitioner fails to comply with a state contemporaneous-objection rule at trial. Id. at 87. The state court clearly and unambiguously relied on the procedural default in overruling Petitioner's fourth claim; thus, the claim is immune from federal review unless Petitioner can demonstrate “cause and actual prejudice as a result of the alleged violation of federal law.” Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002).

         In his ground four, Petitioner claims that the Texas Court of Criminal Appeals unreasonably applied federal law, as determined by the United States Supreme Court, in concluding that his right to cross-examine state witnesses regarding their pending criminal cases was forfeited due to his trial counsel's ineffectiveness in failing to object to the restriction on his right to confrontation. (Am. Pet. 12, ECF No. 22; Pet'r's Traverse 23-24. ECF No. 29-1.)

         A criminal defendant has a constitutional right to the effective assistance of counsel at trial. See U.S. Const. amend. VI, XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697. In applying this test, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.

         The Supreme Court emphasized in Harrington v. Richer the standard under which a federal court is to consider an ineffective-assistance-of-counsel claim raised in a habeas petition subject to AEDPA's strictures:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal ...

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