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Smith v. Davis

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

June 8, 2017

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

          OPINION AND ORDER

          REED O'CONNOR 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, Michael Smith, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, Respondent.[2] After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         On December 15, 2011, in the Criminal District Court Number Four of Tarrant County, Texas, a jury found Petitioner guilty of felony driving while intoxicated (DWI). Adm. R., Clerk's R. 76, ECF No. 14-10. The following day, the jury found the habitual-offender notice in the indictment true and assessed Petitioner's punishment at 55 years' confinement. Id. at 87. Petitioner appealed his conviction, but the Seventh District Court of Appeals of Texas affirmed the trial court's judgment on November 25, 2013, and the Texas Court of Criminal Appeals refused Petitioner's pro se petition for discretionary review. Id., Mem. Op. 9, ECF No. 14-4. The record does not indicate that Petitioner sought writ of certiorari. Petitioner filed a state habeas-corpus application challenging his conviction and raising the claims presented in this federal petition, which was denied without written order by the Texas Court of Criminal Appeals on the findings of the trial court. Id., ECF Nos. 14-15. This federal habeas petition followed.

         The appellate court set out the facts of the case as follows:

Appellant was arrested after Arlington Police Department officers stopped him as he drove on Interstate 30 in heavy traffic between 4:00 and 5:00 in the afternoon. Their attention was drawn to appellant by a 911 call from another motorist, Rebecca Huff, who testified both at the suppression hearing and at trial.
Huff testified at trial that at 4:15 on an afternoon in January 2011, she was driving on I-30 between Dallas and Grand Prairie, Texas. She was nearly struck from behind by a grey Chevrolet Astro Van. She watched as the van swerved in and out of traffic several times, sped up and slowed down numerous times, and nearly hit another car. She thought the driver might be intoxicated and called 911 to report what she saw.
Officer Jessica Burns with the Arlington Police Department responded to the dispatch. She saw the van and Huff's car following it. Officer Burns followed the van, and also noted indicators that the driver was intoxicated, including his activating the van's right turn signal and swerving into the lane to the right then back into his previous lane; braking for no apparent reason; and driving about 40 miles per hour in a 60 mile-per-hour zone at a time when heavy traffic was moving much faster. The officer also saw a pick-up swerve to avoid the van when it started to move into the left-hand lane as the truck was passing.
Burns initiated a traffic stop, believing appellant was intoxicated and had committed the offense of failing to maintain a single lane. When she approached the vehicle, she saw appellant alone in the van. She noted the odor of alcohol on appellant's breath and his bloodshot eyes. When questioned about his driving, appellant told the officer he was tired and having problems with his van.
A backup officer opened the sliding door of the van and a 24-ounce beer can fell out of the van. Burns found another such can, about a quarter full, on the floor behind the driver's seat. It was cold to the touch. Burns testified appellant balanced himself against the van while waiting for officers. Burns also administered several standard field sobriety tests, all of which appellant failed. The patrol car video was introduced into evidence at trial and shown to the jury.
Appellant was arrested and taken to the hospital. His blood was drawn and he admitted to another officer he had consumed four to six 24-ounce cans of beer that day. His blood test showed his blood alcohol concentration level was 0.24, an amount three times the level for intoxication.

Id., Mem. Op. 2-3, ECF No. 14-4.

         II. ISSUES

         Petitioner claims that the blood draw was illegally taken without a warrant pursuant to § 724.012(b)(3)(B) of the Texas Transportation Code, [3] without his consent, and without exigent circumstances, in violation of the Supreme Court decision in Missouri v. McNeely decided on April 17, 2013. 133 S.Ct. 1552 (2013) (holding that the dissipation of alcohol in the blood alone does not constitute exigent circumstances justifying a warrantless blood draw from a drunk-driving suspect). Thus, he asserts that (1) his trial counsel was ineffective by failing “to adequately litigate the Fourth Amendment violation” and (2) his appellate counsel was ineffective by failing “to adequately raise the illegal blood draw violation in the appropriate venue.” Pet. 6, ECF No. 1.

         III. RULE 5 STATEMENT

         Respondent does not believe that the petition is barred by successiveness, the statute of limitations, or a failure to exhaust state court remedies. (Resp't's Answer 5, ECF No. 13.)

         IV. DISCUSSION

         A. Legal Standard for Granting Habeas Corpus Relief

         A § 2254 habeas petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established Supreme Court precedent or that is based on an unreasonable determination of the facts in light of the record before the state court. Harrington v. Richter,562 U.S. 86, 100-01 (2011); 28 U.S.C. ยง 2254(d)(1)-(2). This standard is difficult to meet and ...


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