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Reed v. Davis

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

July 20, 2017

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

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Ladarius Reed, 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 August 2012 petitioner was indicted in Tarrant County, Texas, Case No. 1287601D, on two counts of aggravated robbery with a deadly weapon. (Clerk's R. at 2.) Petitioner's jury trial commenced on January 30, 2013, at the conclusion of which the jury found petitioner guilty of both counts and true to the repeat-offender notice in the indictment and assessed his punishment at 2 6 years' confinement on count one and 15 years' confinement on count two. (Id. at 77, 80.) The Second District Court of Appeals of Texas affirmed the trial court's judgment on appeal. (Docket Sheet at 1.) Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals, but he did file two relevant postconviction habeas-corpus applications challenging his convictions, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court.

         The state appellate court summarized the background facts of the case as follows:

On June 20, 2012, Nathan Tumanuvao and his girlfriend, Christina Lee, agreed to meet Tumanuvao's friend Danny Farmer in a McDonald's parking lot in Arlington to purchase a gun. Tumanuvao drove Lee's car to the parking lot and waited for Farmer. Around 11:00 p.m., Farmer and Appellant, whom neither Tumanuvao nor Lee had met before, arrived at the parking lot and got into Lee's car. Farmer sat in the back seat behind Lee, and Appellant sat behind Tumanuvao. Tumanuvao greeted Farmer and then asked, "Can I see [the gun]?" Appellant then pointed the gun at Tumanuvao's head and said, "Run it, I want everything, give me everything you have." Tumanuvao asked Farmer, "[W]hat's wrong with your friend?" Appellant said, "[E]verybody shut up, everybody-I'm going to kill everybody in this car."
Tumanuvao exited the car. He tried holding the rear driver side door shut so that Appellant could not get out of the car. Appellant kicked the door open, knocking Tumanuvao to the ground. Appellant got out of the car and shot Tumanuvao in the stomach. Appellant and Farmer then ran off.
Lee went to call 911 and found that her phone was not in the car. She found someone in the drive-through lane at the McDonald's who called 911 for her. The police arrived, and Tumanuvao was taken to the hospital. Tumanuvao underwent emergency surgery, but doctors were not able to remove the bullet. Lee went with police detectives to the police station to give her statement and to view some lineups. She identified Farmer from one lineup.
The next morning, Lee got on Facebook to see if she could identify any of Farmer's friends as the shooter. She saw Appellant's picture under the name "Markey Reed." She called a police detective, gave him the name, and agreed to return to the police station to view another lineup. She identified Appellant from that photo lineup.

(Mem. Op. at 1-3.)

         II. Issues

         In four grounds, petitioner raises the following claims:

(1) He received ineffective assistance of trial counsel because counsel failed to inform him that there was a deadline on the 15-year plea bargain deal;
(2) The trial court failed to give him an opportunity to allocution;
(3) He received ineffective assistance of trial counsel because counsel failed to inform him that he had the right to address the jury prior to sentencing through the procedure of allocution; and
(4) He received ineffective assistance of trial counsel because counsel failed to advise him that he had the right to have character witnesses testify on his behalf at trial.

(Pet. at 6-7.)

         III. Rule 5 Statement

         Respondent does not believe that the petition is time-barred or subject to the successive-petition bar, however she asserts that one or more of petitioner's claims are unexhausted and/or procedurally barred as to one or both convictions. (Resp't's Answer at 5-6.) 28 U.S.C. §§ 2244(b), (d) & 2254(b).

         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. 28 U.S.C. § 2254(d) (1)-(2); Harrington v. Richter, 562 U.S. 86, 100-01 (2011). 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, 568 U.S. 289, 298 (2013); Harrington, 562 U.S. at 99; Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003).

         B. Right to Allocution

         Under his second ground, petitioner claims that the trial court failed to give him an opportunity to allocution before the jury (Pet. at 2.) Petitioner raised this claim in his state habeas-corpus application attacking his conviction and sentence under count one. (O3SHR at 9, 23-24.[2]) The state court recommended denial of the claim because the claim was a "record claim" that should have been, but was not, raised on direct appeal and was thus not cognizable on state habeas review. (Id. at 64.) Under the procedural-default doctrine, a federal court may not consider a state prisoner's federal habeas claim when the last state court to consider the claim expressly and unambiguously based its denial of relief on an independent and adequate state procedural default. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Johnson v. Puckett, 176 F.3d 809, 823 (5th Cir. 1999); Fisher v. State, 169 F.3d 295, 300 (5th Cir. 1999). The state court clearly relied upon a firmly established and regularly followed state procedural rule to recommend denial of the claim. Ex parte Gardner,959 S.W.2d 189, 199 (Tex. Crim. App. 1996); Ex parte Banks,769 S.W.2d 539, 540 (Tex. Crim. App. 1989) (holding "the Great Writ ...


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