United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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
(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
(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.)
Rule 5 Statement
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).
Legal Standard for Granting Habeas Corpus Relief
§ 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.
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).
Right to Allocution
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.) 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 ...