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Ledet v. Davis

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

June 28, 2017

DESMOND LEDET, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          John McBryde, Judge

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Desmond Ledet, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, Director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.

         I. Procedural History

         In June 2009 petitioner was indicted in Tarrant County, Texas, Case No. 1152016D, with aggravated sexual assault. (Clerk's R. 2, ECF No. 25-17.) Petitioner's jury trial commenced on June 22, 2010, at the conclusion of which the jury found petitioner guilty of the lesser-included offense of sexual assault, and the trial court assessed his punishment at 20 years' imprisonment. (Id. at 205.) The Second District Court of Appeals of Texas affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review. (Mem. Op. 10, ECF No. 25-3.) Petitioner also filed a state postconviction habeas-corpus application challenging his conviction, which was denied without written order by the Texas Court of Criminal Appeals on the findings of the trial court. ("Action Taken, " ECF No. 26-10.) This federal petition followed.

         The state appellate court summarized the evidence at trial as follows:

The complainant testified that appellant approached her in his truck at Jasmine Food Store on East Berry Street in Fort Worth and asked if she wanted a ride; she was walking to find a telephone, so she agreed. She also said that appellant told her he needed to stop at a friend's house along the way. Appellant drove to an apartment complex and left the complainant alone in the truck for about five minutes. When he returned, he drove to the back of the complex, and the complainant started to feel nervous. She told appellant that she would find another way home.
According to the complainant, when she tried to step out of the truck, appellant pulled a gun from the driver's side door, pointed it at her, told her to get back in the truck, and threatened to kill her if she screamed.
The complainant testified that appellant told her to pull off her panties; she began to beg him not to "do this." Appellant became more aggressive, pulled off the complainant's panties, ordered her to face backward in the seat, placed his hands around her neck, and forced her to have sex with him. Appellant then got back in the driver's seat and drove off with the complainant still in the truck. She jumped out on a bridge and ran across the street to a pay phone where she called 911.
The evidence shows that police took the complainant to the hospital where hospital personnel performed a sexual assault examination. Semen with unidentified DNA was taken from the complainant's vagina, ankle, and panties and preserved; that DNA was determined to originate from appellant after the complainant identified him in a photo lineup approximately five years later.

(Mem. Op. 2-3, ECF Mo. 25-3.)

         The defensive theory at trial was to discredit the victim with her admission to using alcohol and crack cocaine at the time of the offense and Petitioner's testimony that she approached him at a car wash and propositioned him with sex in exchange for money to buy crack cocaine; that he gave her money for crack cocaine; that the sex was consensual; and that he believed she was in a "cocaine-induced, paranoid, schizophrenic, panic attack" based on her "schized out" behavior. (Reporter's R., vol. 5, 112- 32, 163, 171, ECF No. 25-9.)

         II. Issues

         In eleven grounds for relief, petitioner claims that he received ineffective assistance of trial counsel. (Pet. 6-7 & Attach. 1-10, ECF No. 1.)

         III. Rule 5 Statement

         Respondent believes that petitioner has sufficiently exhausted his state court remedies as to the claims raised and that the petition is not time-barred or subject to the successive-petition bar. (Resp't's Answer 5, ECF No. 21.) 28 U.S.C. §§ 2244(b), (d) & 2254(b).

         IV. Discussion

         Legal Standard for Granting Habeas Corpus Relief

         A § 2 2 54 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. § 2254(d) (l}-(2). This standard is difficult to meet and "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Harrington, 562 U.S. at 102.

         Additionally, the statute requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000). Further, when the Texas Court of Criminal Appeals denies a federal claim in a state habeas-corpus application without written opinion, a federal court may presume "that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary" and applied the correct "clearly established federal law, as determined by the Supreme Court of the United States" unless there is evidence that an incorrect standard was applied, in making its decision. Johnson v. Williams, __U.S.__, 133 S.Ct. 1088, 1094 (2013); Harrington, 562 U.S. at 99; Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003).

         A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. Const, amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); 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. 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 recently emphasized in Harrington v. Richter the manner in 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 law." A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

562 U.S. at 101 (quoting Williams, 529 U.S. at 410)). Accordingly, it is necessary only to determine whether the state courts' rejection of petitioner's ineffective assistance claims was contrary to or an objectively unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson v, Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005); Schaetzle, 343 F.3d at 443.

         Petitioner was represented at trial by Curtis L. Fortinberry and Lindsay M. Gilland. In response to petitioner's allegations, Fortinberry filed an affidavit in the state habeas proceedings, which the state habeas court found to be credible. (State Habeas R., vol. 2, 48 9, ECF No. 27-9.) The state habeas court adopted the state's proposed findings of fact, which are largely consistent with counsel's affidavit and the documentary record.

         The Texas Court of Criminal Appeals, in turn, denied relief based on the trial court's findings. Petitioner has not presented clear and convincing evidence in rebuttal. Thus, relying on the presumptive correctness of the state courts' factual findings, in conjunction with the state court records, the court conducts an independent review of petitioner's claims.

         Under his first ground, petitioner claims Fortinberry was ineffective by failing to adequately prepare for trial because he did not make a request to the state for evidence favorable to the accused or attempt to discover any such evidence on his own.

         Specifically, he asserts that counsel should have discovered police reports involving the victim that could have been used as impeachment evidence against her. (Pet. 6, ECF No. 1; State Habeas R., vol. 1, 292-312.) To the extent raised in petitioner's state habeas application, counsel denied the allegations and discussed them in his affidavit as follows:

Ms. Gilliland [sic] and I worked many hours on Petitioner's case. We read all of Petitioner's letters (approximately 20) which included areas of questioning for trial. Petitioner was very engaged in the defense of his case. We discussed the strategy and theme of his case. He knew what we were attempting and was in full agreement.
Petitioner asserts that the victim had "multiple convictions" I saw no evidence of this. There are two offense reports in which the victim is the complainant but none where she is the suspect. The State produced no criminal histories of the victim even after a motion to do so was filed. The officer also denied the existence of a criminal history for the victim under oath.
This ground alleges impeachment evidence regarding two offense reports in which the victim was the injured party. In one case, after making the deadly conduct-family member report, she refused to cooperate in the investigation and the detective wasn't convinced complainant did not embellish the story. The other offense report was another assault family violence. The police interviewed both her and the suspect and the detective determined that the complainant really didn't care about the case so he cleared it and said that all the elements of assault were not met.
I do not believe this is impeachment evidence as she was not questioned about it so she did not deny anything regarding these reports. Furthermore the mere fact that the police did not file a case against the two suspects does not mean the assaults did not happen.

(State Habeas R., vol. 2, 403-04, ECF No. 27-9.)

         The state court found that petitioner's first attorney, who filed a plethora of motions, filed a motion for production of evidence favorable to the accused, which included a request for "the arrest and/or conviction record of each State witness"; that there was no evidence the state was ever in possession of the reports or knew of their existence; that counsel saw no evidence that the victim had prior convictions; that the police reports are not evidence that the victim had prior convictions; and that there was no evidence that the state failed to disclose evidence favorable to petitioner because counsel did not file a second motion. (Id. at 488, 490, 501.) The court also found that the reports "significantly predated" petitioner's offense and had nothing to do with his case. (Id. at 491.) Applying Strickland, the court concluded that petitioner had failed to demonstrate that there was a reasonable likelihood that the outcome of the proceedings would have been different had counsel investigated the case more or filed a second motion to provide favorable evidence prior to trial. (Id. at 497.)

         The state courts' application of Strickland was not unreasonable. It is presumed that counsel made an adequate investigation, and, in this case, it appears counsel had the added benefit of a court-appointed investigator. (Clerk's R. 55, ECF No. 25-17.) Strickland, 466 U.S. at 689. Additionally, Tarrant County has an "open file" policy, and nothing in the record suggests that counsel should have been aware of the reports or suspected that impeaching evidence was being withheld. Nor does petitioner demonstrate any resulting prejudiced by counsel's failure to discover the reports. The reports indicate that in 2001 the victim was involved in a fight with another woman at an apartment complex but was not arrested in connection with the incident; that the victim was the complaining party in two reports taken in 2002; that the victim was arrested for outstanding traffic warrants following one of the 2002 incidents; and that sometime before the 2 0 02 reports, she was arrested for resisting arrest and failure to identify truthfully. Typically, evidence of an arrest may not be used for impeachment of a witness. See United States v. Aguilar, 754 F.2d 1202, 1206 (5th Cir. 1985). Nor is there any evidence that, as alleged by petitioner, the reports were false or made in retaliation. (Pet'r's Reply 10-11, ECF No. 37.) Mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue. Green v. Johnson, 0 F.3d 1029');">160 F.3d 1029, 1042 (5th Cir. 1998).

         Under his second ground, petitioner claims counsel was ineffective by failing to object to the following argument made by the prosecution during the guilt/innocence phase:

Driving around his hood. He was familiar with that place, wasn't he? He knew all the hangouts. He knew everywhere to go to have undetected sex, didn't he? All those places he went. Let her go to the bathroom. We had sex here. He knew that place like the back of his hand because he drives it. He drives it. Looking for people he can do what he wants to do with. The man's a predator.

(App. to Pet'r's Reply 16, ECF No. 38; Reporter's R., vol. 6, 18, ECF No. 25-10 (emphasis added).) Petitioner urges that the argument served to insinuate to the jury that he was "habitually driving around in a predatory manner hunting for multiple people to sexually assault." (Pet. at 6, ECF No, 1.) Counsel responded to the allegation in his affidavit as follows:

The state asserts in closing argument that he knew what he was doing, that he knew the neighborhood. He knew where to go to have undetected sex. The fact that he went to a location and did in fact have undetected sex indicates he knew where he was going. This is not outside the scope of the evidence presented.

(State Habeas R., vol. 2, 403, ECF No. 27-9.)

         Under state law, "summation of the evidence" is a proper area of jury argument. Felder v. State, 84 8 S.W.2d 85, 94-95 (Tex. Crim. App. 1992) . Thus, the state habeas court found that as a matter of state law, the argument was proper as a summation of the evidence. Applying Strickland, the court concluded that counsel's decision to not object to the argument was therefore the result of reasonable trial strategy. The court also concluded that petitioner failed to demonstrate a reasonable likelihood that the result of the proceedings would have been different had counsel objected to the argument. (Id. at 495.)

         The state courts' application of Strickland was not unreasonable. "[I]n our role as a federal habeas court, we cannot review the correctness of the state habeas court's interpretation of state law." Young v. Dretke, 356 F.3d 616, 628 (5th Cir. 2004). Accepting the state court's conclusion based on state law that the argument was proper, counsel was not ineffective for failing to raise an objection to it. Ries v. Quarterman, 522 F.3d 517, 531 (5th Cir. 2008). Counsel is not required to make frivolous motions or objections. Green v. Johnson, 16 0 F.3d 1029, 1037 (5th Cir. 1998); United States v. Oakley, 827 F.2d 1023, 1025 (5th Cir. 1987).

         Under his fourth ground, petitioner claims counsel was ineffective by failing to object during voir dire to the state's use of a "prejudicial definition" of proof beyond a reasonable doubt based on the "Wheel of Fortune" television show. (Pet., Attach. 1-3, ECF No, 1.) According to petitioner, the hypothetical based on the show violated his right to a fair trial and his right to be convicted only upon proof of each element of the offense beyond a reasonable doubt, lessened the state's burden of proof, and tainted the presumption of innocence. (Id., Attach. 1.) Relying solely ...


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