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Davenport v. Davis

United States District Court, W.D. Texas, Waco Division

July 27, 2017




         Before the Court are Petitioner's Applications for Habeas Corpus Relief under 28 U.S.C. § 2254, [1] Respondent's Response (#10), and Petitioner's Reply (#17). Petitioner, proceeding pro se, has paid the filing fee. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be denied.


         A. Petitioner's Criminal History

         According to Respondent, the Director has lawful and valid custody of Petitioner pursuant to judgments and sentences of the 77th District Court of Limestone County, Texas. Petitioner was charged by indictment in four separate causes with a total of four counts of aggravated assault of a public servant, burglary of a building, and evading arrest. 278 CR 183-84; 279 CR 182-83; 280 CR 4; 281 CR 6.[2] Following a consolidated trial in all causes, the jury found Petitioner not guilty of two of the aggravated assault counts and guilty of the other two aggravated assault counts, the burglary count, and the evading arrest count. 278 CR 245-46; 279 CR 226-27; 280 CR 64-65; 281 CR 213-14. The jury assessed punishment of fifty years of imprisonment for each of the aggravated assault counts and ten years of imprisonment for both the burglary and evading arrest counts. Id.

         Petitioner appealed his conviction and on April 13, 2015 and April 27, 2015, the Seventh Court of Appeals affirmed. Davenport v. State, Nos.07-14-00278-CR, 07-14-00279-CR, 466 S.W.3d 308 (Tex. App.-Amarillo, Apr. 27, 2015); Davenport v. State, Nos.07-14-00280-CR, 07-14-00281-CR, 2015 Tex.App. LEXIS 3605 (Tex. App.-Amarillo, Apr. 13, 2015). Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals (TCCA), nor did he petition the Supreme Court for a writ of certiorari.

         Petitioner then filed state applications for writ of habeas corpus on October 30, 2015. See SHCR-01 at 262; SHCR-02 at 262; SHCR-03 at 99; SHCR-04 at 248. The Texas Court of Criminal Appeals denied the applications without written order on the findings of the trial court without a hearing on June 29, 2016. SHCR (#13-4; 13-18; 14-8; 15-2). Petitioner filed his federal petitions on December 27, 2016.

         B. Factual Background

         The Seventh Court of Appeals summarized the facts of the case as follows:

On October 5, 2013, appellant and his confederate, Richard Fraser, set out to steal a welding machine and other items from a country weekend home owned by Donald Jones. Unknown to appellant and his cohort was the fact that two Texas Department of Parks and Wildlife Game Wardens, Trent Marker and Michael Serbanic, were in that part of Limestone County looking for a poacher who was suspected of hunting from the roadway out of season. The Game Wardens set up surveillance at a rural location in Limestone County. During this surveillance, they noticed a vehicle driving very slowly toward them with the lights off. After repositioning their vehicle, they watched as the vehicle went toward Jones's home. Initially, the Game Wardens did not know who owned the home and, indeed, speculated that it might be the home of appellant's father. However, while observing appellant and his associate, the Game Wardens heard glass break and surmised they were witnessing a burglary in progress.
As appellant began leaving the scene of the burglary, Warden Serbanic activated the emergency lights and siren on the Department of Parks and Wildlife pickup truck he was driving and attempted to block appellant's path away from the burglary site. It was at this time that appellant's truck and trailer collided with the vehicle containing the Game Wardens. Appellant maneuvered his vehicle away from the Game Wardens' pickup and there began a chase across rural parts of Limestone County.
The pursuit by the Game Wardens of appellant's vehicle reached speeds of 80 m.p.h. After an extended pursuit, there suddenly appeared an intense beam of light emanating from appellant's vehicle that was directed into the cab of the pursuing Game Wardens' vehicle. Warden Serbanic, who was driving the Parks and Wildlife pickup, was temporarily blinded by the beam of light. Serbanic then lost control of his vehicle, went off the road, and crashed into a tree. As a result of colliding with the tree, Warden Marker was seriously injured and Warden Serbanic suffered less serious injuries.
Appellant escaped the scene of the wreck and was hidden by friends. However, the next day, he was captured and subsequently indicted for a number of offenses. At the trial, appellant was convicted of two aggravated assaults on peace officers arising out of the beam of light causing Warden Serbanic to lose control of his vehicle and crash into the tree, one conviction for the injuries suffered by Warden Marker, and another for the injuries suffered by Warden Serbanic. Appellant was also convicted of burglary of a building and evading arrest or detention by motor vehicle. Appellant's counsel on appeal filed an Anders brief regarding the burglary and evading convictions, and those cases were disposed of by the Court in a separate opinion.
Appellant, as noted above, was acquitted on the other two charges of aggravated assault on a peace officer arising out of the initial collision.

Davenport, 466 S.W.3d at 309 (internal citations omitted).

         C. Petitioner's Grounds for Relief

         Petitioner raises the following grounds for relief:[3]

1. Appellate counsel was ineffective for failing to challenge the sufficiency of the evidence;
2. He was denied effective assistance of trial counsel because:
a. the court forced him to go to trial with an unprepared attorney;
b. counsel did not subject the State's case to a meaningful adversarial process;
c. counsel failed to object to the prosecutor's improper arguments; and
d. counsel assumed a role “as part of the prosecution team when it was time to put on a defense and also during closing arguments;”
3. The evidence was insufficient to support Petitioner's convictions.[4]

Pet. (#1) at 6, 11; Reply (#17) at 9-10.

         D. Request for Evidentiary Hearing

         Petitioner asserts that his application for habeas relief raises factual questions, which have not been addressed by the state courts and that the state has failed to provide Petitioner with a full and fair hearing concerning his application. Petitioner concludes that he is entitled to an evidentiary hearing to resolve the factual questions left unresolved by the state courts.

         DISCUSSION ...

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