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Brite v. Davis

United States District Court, W.D. Texas, San Antonio Division

August 31, 2017

JIM BRITE, TDCJ No. 1471684 Petitioner,
LORIE DAVIS, Director, Texas Dep't Of Criminal Justice, Correctional Institutions Division, Respondent.



         Pursuant to 28 U.S.C. § 2254, Jim Brite, a/k/a "Jimmy Acosta Brite, " an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division ("TDCJ-CID"), has filed a Motion for an Evidentiary Hearing (Docket Entry "DE" 17), along with his application for a writ of habeas corpus (DE 1), challenging the constitutionality of his underlying convictions for three counts of indecency with a child (Counts I, III and VI), one count of aggravated sexual assault (Count II), and one count of sexual assault (Count IV) . Petitioner, who was sentenced to four terms of twenty years' imprisonment and one term of life imprisonment, maintains that 1) he is actually innocent and trial counsel was ineffective for failing to challenge prosecutorial misconduct; 2) trial counsel was ineffective for failing to raise a collateral estoppel objection to extraneous-offense evidence, failing to know the law regarding the victim's age, and failing to secure the testimony of Mary Ann Harris, a material witness; and 3) his prosecution on the second and third counts violated double jeopardy. (Id.) . As required by Rule 4 of the Rules Governing Section 2254 Cases, the Court has conducted a preliminary review of the petition. Having considered the habeas application (DE 1), Respondent's Answer (DE 13 and 21), Petitioner's Traverse (DE 16 and 22), and the applicable law, the Court is of the opinion the petition should be DENIED. (DE 1). Petitioner's Motion for an Evidentiary Hearing is also DENIED. (DE 17).

         I. Procedural Background

         In November 2007, Brite was convicted of three counts of indecency with a child by sexual contact, one count of aggravated sexual assault of a child, and one count of sexual assault of a child. State v. Brite, No. 2006-CR-5362 (186th Dist. Ct., Bexar County, Tex., Nov. 2, 2007); (DE 11-15 at 192-202) . He was given four twenty-year sentences, and one life sentence, all to run concurrently. Id. Brite's convictions and sentences were affirmed on direct appeal by the Fourth Court of Appeals in June of 2009. Brite v. State, No. 04-07-820-CR, 2009 WL 1617741 (Tex. App.-San Antonio, June 10, 2009, pet. ref'd). Brite was subsequently granted the opportunity to file an out-of-time petition for discretionary review by the Texas Court of Criminal Appeals ("TCCA"), which the state court eventually refused. Brite v. State, No. PD-1706-13 (Tex. Crim. App. July 23, 2014) . He then appealed his case to the United States Supreme Court, but his petition for writ of certiorari was denied on January 12, 2015. Brite v. Texas, 135 S.Ct. 963 (2015).

         Almost a year later, Brite filed a state habeas corpus application challenging his convictions and sentences. Ex parte Brite, No. 79, 647-02 (Tex. Crim. App.) (DE 12-17, pg. 394). In two separate pleadings to this Court, Brite asserts that he filed his application on January 7, 2016, by depositing it in the prison mail-box. (DE 4, pgs. 2-4; DE 16, pg. 3). However, records provided by Respondent Davis indicate that Brite placed his application in the prison mailing system on January 8, 2016. (DE 13-1, pg. 28). Brite's state habeas petition was subsequently denied without written order by the Texas Court of Criminal Appeals on June 1, 2016. (DE 12-13). Brite filed the current federal habeas petition on June 7, 2016. (DE 1, pg. 10) .

         II. Factual Background

         The factual background was summarized as follows by the Fourth Court of Appeals in its Memorandum Opinion, dated June 10, 2009:

At the time of trial, Nancy M., the mother of S.M., who was one of the complainants, was separated from her husband Rick M., who was S.M.'s father. Brite was the boyfriend of S.M.'s paternal grandmother. Nancy M. initially liked Brite, and he attended numerous family outings. In October or November of 2005, Nancy M. and Rick M. were having marital problems, and Rick M. moved to his mother's house. S.M. and her siblings would visit Rick M. at their grandmother's house, and they stayed the night approximately five times. In December of 2005, S.M.'s younger sister, CM., who was three or four years old, told Nancy M. something that made her concerned. Nancy M. asked S.M., who was approximately seven years old, about the information, and S.M. told her that "she was sleeping and that she woke up and [Brite] touched her middle." Nancy M. set up an appointment for S.M. to see a counselor, Mary Ann Harris, on December 28, 2005. After Harris spoke with S.M., she instructed Nancy M. that she needed to call child protective services and make a police report. Harris referred Nancy M. to Child Safe where S.M. was interviewed on videotape and medically evaluated. S.M. started counseling with Marianne Torres and continued in counseling for a little over a year. Nancy M. did not immediately call the police, but eventually both Nancy M. and S.M. gave statements to Detective Lisa Miller. Nancy M. testified that the incident made S.M. scared and angry and caused her to have trouble sleeping. Nancy M. admitted that her separation from Rick M. also could cause S.M. to be angry and have trouble sleeping. Nancy M. further stated that S.M. would express anger towards Rick M. because he would yell at S.M. and sometimes curse her with profanity.
S.M., who was nine years old at the time of trial, testified that in October or November of 2005, she was sleeping on the couch at her grandmother's house, and Brite "put his hand in [her] pants" and touched her private part, which she stated was her vagina, underneath her pan ties [sic]. S.M. stated Brite's hand was touching the skin of her private part. Although S.M. told Brite to stop, he continued touching her. S.M. said when Brite touched her, his hand would stay still. S.M. did not tell anyone because she thought her mom would get mad at her. S.M. said Brite touched her about four times. S.M. recalled one time when Brite was eating hot wings, and "he touched [her] there and it started to burn." Brite told her to get a washcloth and put it on her "middle" so it would stop burning. S.M. said she told her little sister because she was afraid to tell her mom. S.M. testified that no one told her to say bad things about Brite or told her to make up stories about him because they were mad at him. In response to whether Brite's "fingers were on the outside of her private part or something else, " S.M. responded that she did not remember. Detective Lisa Miller took Nancy M.'s statement and sent S.M. to Child Safe for a medical evaluation and interview. On March 6, 2006, Detective Miller interviewed S.M. and later interviewed Brite on March 26, 2006. Detective Miller testified that Brite did not respond directly to her questions but qualified his answers. For example, Brite would respond that he "cannot see myself doing that" or "I don't remember doing that." During the interview, Brite did corroborate that the family ate hot wings on the night of one of the alleged incidents; however, Brite told Detective Miller that S.M. got the sauce on her hands when she cleaned up the kitchen and later complained that she was burning after she went to the restroom. Brite further stated that he examined S.M., determined that she must not have washed her hands before using the restroom, and instructed her to go wash her hands and clean herself with a wash rag. Brite explained that he examined her to see if something had bitten her.
After Detective Miller turned S.M.'s case over to the district attorney's office for their review, she was contacted by Brite's daughter, A.B., who subsequently came to the station for an interview regarding sexual offenses Brite committed against her. Based on that interview, Detective Miller referred A.B.'s case to the district attorney for aggravated sexual assault of a child.
Nancy Kellogg, a pediatrician who specializes in treating child sexual abuse victims, testified that S.M. told her she was asleep on the couch when Brite put his hand inside and it felt uncomfortable. S.M. was anxious and difficult to interview because she did not want to elaborate on details. Dr. Kellogg further stated that S.M. indicated through her gestures that Brite's hand was inside of her private. Dr. Kellogg testified that S.M.'s description of the burning also indicated to her that Brite had penetrated S.M. with his finger. Dr. Kellogg testified that S.M.'s physical exam was normal which is most common when examining children in this context.
A.B. testified that when she was six years old, Brite, her father, placed his penis between her legs. Although Brite tried to place his penis inside her vagina, she told him it hurt, and he stopped. He continued, however, rubbing his penis in between her legs. A.B. testified that Brite would do this to her at least three or four times a week. Brite also touched A.B.'s vagina with his fingers a lot and placed his mouth on her vagina at one point. These incidents continued after September 1, 1987, until her parents divorced when she was around fourteen years old. When A.B. was in third grade, she was called to the counselor's office and told the counselor about Brite's actions. Child protective services and the police were called. A.B. stated that the family went to counseling for about a year after she told the counselor. After the counseling, Brite started fondling A.B. again, and Brite continued placing his sexual organ between A.B.'s legs and touching her sexual organ with his sexual organ. After her parents' divorce, Brite attempted to touch A.B. when she was seventeen; however, she stopped him. A.B. was afraid to call the police because nothing happened the other time they were called. When asked why she finally decided to pursue charges against her father, A.B. stated Nancy M. told her about the incident involving S.M. A.B. further stated, "I just don't want him to do this to anybody anymore. "

Brite, 2009 WL 1617741, at *l-3.

         Ill. Standards of Review

         A. Review of State Court Adjudications

         Brite's federal petition is governed by the heightened standard of review provided by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). 28 U.S.C.A. § 2254. Under § 2254(d), a petitioner may not obtain federal habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable n determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005) . This intentionally difficult standard stops just short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).

         A federal habeas court's inquiry into unreasonableness should always be objective rather than subjective, with a focus on whether the state court's application of clearly established federal law was "objectively unreasonable" and not whether it was incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Even a strong case for relief does not mean the state court's contrary conclusion was unreasonable, regardless of whether the federal habeas court would have reached a different conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was objectively unreasonable, which is a "substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). So long as "fair minded jurists could disagree" on the correctness of the state court's decision, a state court's determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, to obtain federal habeas relief on a claim previously adjudicated on the merits in state court, Brite must show that the state court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103; see also Bobby v. Dixon, 565 U.S. 23, 24 (2011).

         Furthermore, except for the narrow exceptions contained in § 2254(e)(2), a habeas petitioner is precluded from further factual development in federal court and must rely on the evidence presented to the state court when challenging a state court finding. Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). Reasoning that "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court, " Pinholster explicitly held that "[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Id. Thus, "evidence introduced in federal court has no bearing on § 2254(d) (1) review" and this Court's review "is limited to the record in existence at the time [of the state court decision], i.e., the record before the state court." Id.

         B. Review of Sixth Amendment Claims

         The Court reviews Sixth Amendment claims concerning the alleged ineffective assistance of trial counsel ("IATC" claims) under the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner cannot establish a violation of his Sixth Amendment right to counsel unless he demonstrates (1) counsel's performance was deficient and (2) this deficiency prejudiced his defense. 466 U.S. at 687-88, 690. According to the Supreme Court, "[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

         In determining whether counsel performed deficiently, courts "must be highly deferential" to counsel's conduct, and a petitioner must show that counsel's performance fell beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89. Counsel is "strongly presumed to have rendered adequate assistance and made all .significant decisions in the exercise of reasonable professional judgment." Burt v. Titlow,134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). "A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Cotton v. Cockrell,343 F.3d 746, 752-53 (5th Cir. 2003). As the Supreme Court explained, "[j]ust as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities." Richter, 562 U.S. at 110. For this reason, every effort must be made to eliminate the "distorting effects of hindsight." Strickland, 466 U.S. at 689; Yarborough v. Gentry,540 U.S. 1, 6 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the ...

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