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Hill v. Davis

United States District Court, S.D. Texas, Houston Division

June 28, 2017

KEITH CHESTER HILL, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM OPINION FOLLOWING LIMITED REMAND

          KEITH K. ELLISON, UNITED STATES DISTRICT JUDGE

         In denying petitioner's section 2254 habeas petition, this Court granted a certificate of appealability as to whether "the state court was objectively unreasonable in determining that petitioner was not prejudiced by trial counsel's deficient performance during the punishment phase of his trial." Petitioner filed a counseled appeal to the Fifth Circuit Court of Appeals, and moved for an additional certificate of appealability as to whether the state habeas court unreasonably concluded that his trial counsel did not perform deficiently with respect to the admission of two rings and a newspaper article seized during a search of his family's home. The Fifth Circuit issued a limited remand in the appeal, remanding the case to this Court "for the limited purpose of entering reasons for denying [petitioner's] ineffective assistance of counsel claim as it relates to the admission of the rings and the newspaper article." Hill v. Davis, Appeal No. 16-20268 (5th Cir. May 4, 2017).

         As an initial matter, this Court notes that among her grounds for summary judgment in the section 2254 proceeding, respondent argued that counsel was not deficient in failing to object to the rings and newspaper article. Respondent stated:

With respect to the rings and newspaper article, the state habeas court specifically found that trial counsel's decision not to further investigate whether Hill's father's consent to the search of the home was reasonable. The state habeas court further determined that trial counsel was not deficient for not contesting the admission of this evidence because the evidence was properly obtained pursuant to Hill's father's consent to a search of the home and, accordingly, was admissible. The TCCA adopted the state habeas court's findings in denying relief. These findings are entitled to a presumption of correctness in the instant forum, which Hill as not rebutted with clear and convincing evidence.

(Docket Entry No. 11, p. 33-34, citations omitted.)

         Petitioner did not contest this argument in his response to the motion for summary judgment. (Docket Entry No. 12.) To the contrary, petitioner focused his response on the issues of harmless error and Strickland prejudice. Regarding ineffective assistance of counsel, petitioner limited the scope of his response to the following:

A. This Court Must Determine Whether The State Court Unreasonably Applied The Strickland Standard In Concluding That Petitioner Did Not Demonstrate Prejudice.
and
B. The State Court Unreasonably Applied The Strickland Standard In Failing To Consider The Cumulative Effect Of Trial Counsel's Errors In Determining Prejudice.

(Docket Entry No. 12, pp. 7, 8.) No mention was made of the rings or newspaper article in petitioner's response, or of Phillip Hill's consent to the search and counsel's alleged deficient performance in not objecting to the search, the rings, or the newspaper article. Consequently, petitioner was not entitled to habeas relief or a certificate of appealability as to those claims.

         Regardless, petitioner's claim lacks merit, as follows.

         I. STATE HABEAS PROCEEDINGS

         Petitioner claimed in his application for state habeas relief, as he did here, that trial counsel was ineffective at the punishment phase of trial in failing to object to admission of evidence seized from petitioner's home pursuant to an allegedly invalid search warrant. The complained-of evidence included a home computer, rings belonging to one of the victims, and a newspaper article reporting the criminal offenses for which petitioner was ultimately convicted. Because the State had presented testimony at trial showing that Phillip Hill, petitioner's father, had consented to having the house searched, petitioner additionally argued that counsel should have challenged the voluntariness of the consent. He contends that, by showing the consent was coerced, counsel could have successfully excluded admission of the rings and newspaper article.

         To support his claim of coerced consent, Phillip Hill submitted an affidavit to the state trial court on collateral review, in which he stated that the law enforcement authorities said they would be "gentle" to the house if he consented to the search, but that if they had to get a warrant, they would "not be so nice." He stated that he consented to the search because he was afraid the officers would damage the house if he refused. Inexplicably, Phillip Hill told trial counsel he consented to the search, but did not tell him about the alleged coercion.

         Phillip Hill argues that it was trial counsel's fault that Hill did not disclose the alleged coercion, because counsel "did not ask me to explain the circumstances under which I gave that consent." Hindsight being perfect, Phillip Hill claims that, had counsel asked, he would have disclosed the officers' alleged coercion.

         However, the state court record shows that counsel and Phillip Hill did discuss the circumstances under which Hill gave the consent. Phillip Hill's post-conviction affidavit testimony - that he consented to avoid potential damage to the house - was in direct contrast to his testimony at trial. Under direct examination by defense counsel at trial, Phillip Hill testified that he ...


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