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Runnels v. Davis

United States District Court, N.D. Texas, Amarillo Division

October 31, 2017

TRAVIS TREVINO RUNNELS, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION and TRANSFERRING CASE TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

          MARY LOU ROBINSON, UNITED STATES SENIOR DISTRICT JUDGE.

         On October 13, 2017, Travis Trevino Runnels filed his objections to the Magistrate Judge's Report and Recommendation on Rule 60(b) Motion for Relief from Judgment (Doc. 73, "R&R"). See Docs. 74 and 75 ("Objections"). This matter having come before this Court on consideration of said objections, and following a de novo review of Runnels's Motion for Relief from Judgment under Rule 60(b) and related papers filed in this cause, it is the opinion of the Court that such objections be denied in all respects. The Court further finds the findings and conclusions of the Magistrate Judge are correct and adopts them as the findings and conclusions of the Court.

         I.

         The objections reassert the argument that prior federal habeas counsel, Mr. Don Vernay, should have obtained a complete neuropsychological evaluation of Runnels in an effort to "unexhaust" the ineffective-assistance-of-trial-counsel-claim ("IATC" claim) presented in the original federal petition. The objections conclude that Mr. Vernay's failure to do so amounted to abandonment and structural error justifying 60(b) relief.[1] See Fed. R. Civ. P. 60(b). This conclusion, he asserts, is supported by the subsequent actions taken by the Court of Appeals, as well as by the Court of Appeals's decision to stay rehearing proceedings and sua sponte inform the parties of the actions it took.

         A. Alleged structural error due to abandonment by Mr. Vernay

         Runnels's contention that Mr. Vernay "failed to perform at all" with respect to the IATC claim is not supported by the record. While it is true that he did not have Runnels evaluated by a neuropsychologist, it is also true that, at the time the petition was filed, the holding in Martinez v. Ryan, 566 U.S. 1 (2012) did not apply to Texas inmates. See Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012). Exhausted claims were (and are) reviewed on the record that was before the state court, effectively foreclosing the use of any new evidence. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (holding that evidence introduced in federal court has no bearing on habeas review of claims decided on the merits in state court).

         Mr. Vernay nevertheless correctly anticipated the favorable outcome in Trevino v. Thaler, 133 S.Ct. 1911 (2013) and raised a colorable IATC claim using the Martinez exception to procedural bar and supporting it with new evidence in the form of the state habeas investigator's affidavit. He simultaneously moved for leave to amend or supplement the petition once the Trevino opinion issued, and he anticipated further factual development. See Doc. 18 ("Motion for Leave to File Preliminary Petition for Post-Conviction Writ of Habeas Corpus, Subject to Subsequent Amendment and/or Supplementation").

         The barrier faced by Mr. Vernay (and, incidentally, by current appointed counsel) is that this Court found that the IATC claim was exhausted, not procedurally barred, and therefore not amenable to relitigation and factual development under Martinez. The claim was therefore subject to review under 28 U.S.C. 2254(d), which is limited to the state-court record alone. See Pinholster, 563 U.S. at 182.

         Runnels asserts, however, that the Magistrate Judge erred in finding that the IATC claim raised in the 60(b) motion is the same IATC claim that was presented to the state court and found by this Court to have been exhausted. Obj ections at 5. He contends that Dr. John Fabian's 2017 neuropsychological report contains material and significant factual allegations that serve to fundamentally alter the claim, thereby rendering it "unexhausted." See Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (holding, prior to Martinez, that dismissal for non-exhaustion is not required when evidence presented for the first time in a habeas proceeding "supplements" but does not "fundamentally alter" the claim presented to the state courts); Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (recognizing that a petitioner fails to exhaust state remedies when he presents material additional evidentiary support to the federal court that was not presented to the state court).

         This argument does not avail Runnels in his efforts for Rule 60(b) relief. If Runnels is correct that the presentation of Dr. Fabian's report is sufficient to fundamentally alter the claim previously presented (which this Court does not hold), then by his own admission, he is raising a new claim that was not presented in a prior application. Under these circumstances, the 60(b) motion is a second-or-successive petition subject to the limitations in 28 U.S.C. § 2244(b)(2). See Gonzalez v. Crosby, 545 U.S. 524, 531 -32 (2005) (holding that a Rule 60(b) motion that contains a claim previously omitted due to excusable neglect or that presents newly discovered evidence in support of a claim previously denied is a successive habeas petition and should be treated accordingly). Because the Court of Appeals has not authorized the successive habeas proceeding under section 2244(b), this Court does not have jurisdiction to consider the claim.

         B. Dr. Fabian's report does not support equitable relief

         Assuming for the sake of argument that Runnels's motion for Rule 60(b) relief is not a successive habeas application and that this Court has jurisdiction over the claim, the Court holds in the alternative that Runnels has not made a case for equitable relief. He presents a 3 3-page affidavit based on a neuropsychological evaluation conducted by Dr. Fabian in April and May of 2017. See Doc. 53-1, p. 115. Dr. Fabian concluded that Runnels suffers from Attention Deficit Hyperactivity Disorder (ADHD), Language-Based Learning Disorder (LBLD), and Post-Traumatic Stress Disorder (PTSD) (due in part to years of incarceration). He also found evidence of addiction and dependence to alcohol and cannabis prior to his incarceration (because he is not using drugs in prison). Dr. Fabian opined that Runnels would have benefitted from treatment for these conditions in the nature of special education for ADHD and LBLD, medication for ADHD, counseling for PTSD, and drug treatment. He also believed the ADHD and LBLD could be treated in a prison environment and that such treatment would have an impact on Runnels's impulsivity and cognitive functioning. Doc. 53-1, p. 141-43. The report is based on historical facts contained in the very same affidavits filed by Mr. Vernay in support of the federal petition, which were originally obtained by state habeas counsel from Runnels's grandmother, mother, brother, and two cousins. Doc. 53-1, p. 116; see Doc. 17 (Petition and Exhibits). Other historical data considered by Dr. Fabian is, by all appearances, the same information gathered by trial counsel's investigator, Kathy Garrison; Runnels identifies nothing new. Doc. 53-1, p. 116.

         Dr. Fabian's report is proffered to support the interrelated arguments that (1) trial counsel was ineffective under the Sixth Amendment, (2) state habeas counsel was therefore ineffective under Martinez, and (3) Mr. Vernay therefore abandoned Runnels in federal court, causing structural error. The report does not, however, support the underlying substantive claim advanced by Runnels of ineffective trial counsel.

         Trial counsel had obtained a 1993 psychological report from Runnels's juvenile probation file stating that: Runnels had basically raised himself, lacked coping skills, has difficulty controlling his behavior and may be aggressive under stress, has no family support, has communications problems, lacks overall verbal skills for conversation, is uncooperative, has a hostile demeanor, is one-sided and non-reciprocal in relationships, and has inflexible thinking and values, which makes him a difficult candidate for therapeutic change. 4 SHRR115-16. Trial counsel also retained psychiatrist Lisa Clayton and neuropsychologist Richard Fulbright to examine Runnels. 1 CR 68, 69. Dr. Clayton did not provide helpful information and her ...


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