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Ballard v. Davis

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

June 29, 2017

DAVID LEE BALLARD, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge

         I. INTRODUCTION

         The petitioner, David Lee Ballard, seeks a writ of habeas corpus challenging a state court conviction for felon in possession of a firearm, pursuant to 28 U.S.C. § 2254. The respondent filed a motion for summary judgment arguing that the petition fails to establish that the state court's rejection of his complaint was objectively unreasonable. The petitioner has filed a reply. (Docket No. 18). After considering the pleadings and the applicable law, the Court determines that the respondent's motion for summary judgment should be granted and the petitioner's case should be dismissed.

         II. BACKGROUND

         The petitioner is currently in the custody of the Texas Department of Criminal Justice (“TDCJ”) as the result of a conviction for a “felon in possession of a firearm”. He was also charged with the felony offense of “theft of a firearm” and the state jail offense of “possession of a controlled substance.” The record shows that on October 21, 2015, the petitioner entered a plea of “guilty” to the charge of “felon in possession of a firearm”. The remaining pending charges were dismissed as part of the plea agreement. Thereafter, the petitioner filed a state writ of habeas corpus challenging his state writ of habeas corpus was denied on the merits by the Criminal Court of Appeals.

         On August 8, 2016, the petitioner filed his federal writ of habeas corpus challenging his firearm conviction pursuant to 28 U.S.C. § 2254. On October 28, 2016, the respondent moved for summary judgment. On January 12, 2017, the petitioner responded by filing a cross-motion for summary judgment. (Docket No. 18).

         III.THE PARTIES' CONTENTIONS

         A. Petitioner's Contentions

         The petitioner contends that his due process rights were violated by the Houston Police Department (“HPD”) when they failed to bring him before a magistrate judge for a “probable cause” hearing within 48 hours of his arrest. Further, he asserts that denial of a “probable cause” hearing implies that he was the subject of a false arrest. His rights were further violated when he was denied a bond. In response to the respondent's motion for summary judgment, the petitioner argues that his Fourth Amendment claims should not be barred because the jail library resources provided to him for researching his case were inadequate; therefore, he was denied a full and fair opportunity to properly litigate his claims. In further response, the petitioner claims that his attorney was ineffective. He contends that his attorney failed to file a motion to suppress the evidence seized at his arrest in violation of the Fourth Amendment. Accordingly, the petitioner contends that the Court should deny the respondent's motion for summary judgment and grant his writ.

         B. Respondent's Contentions

         The respondent contends that its motion for summary judgment should be granted because the petitioner has failed to show that the state court's rejection of his state writ was objectively unreasonable. The respondent argues that in order for the petitioner to have a successful federal writ he must show that fair-minded jurists could disagree concerning the correctness of the state court's decision. Further, the respondent argues that the state court's ultimate decision should be the sole test of unreasonableness, and not the court's basis for reasoning.

         Next, the respondent asserts that the fact made by a state court are presumed to be correct and should override the typical standard in summary judgment proceedings. Moreover, the respondent contends, the petitioner should be barred from asserting a Fourth Amendment claim because he failed to litigate the claim in state court and by voluntarily executing a plea agreement. This conduct demonstrates that the petitioner understood the maximum prison term and fine that he was exposed. Accordingly, the petitioner's writ of habeas corpus should be dismissed.

         IV. LEGAL STANDARD

         A. The Anti-Terrorism and Effective ...


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