United States District Court, W.D. Texas, San Antonio Division
DARRICK DAVON OLIVER, TDCJ No. 1921743, Petitioner,
LORIE DAVIS, Director, Texas Dep't Of Criminal Justice, Correctional Institutions Division, Respondent.
AMENDED MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE.
Davon Oliver, an inmate in the custody of the Texas
Department of Criminal Justice-Correctional Institutions
Division ("TDCJ-CID"), has filed an application for
a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
challenging his convictions on two counts of retaliation as a
habitual offender. (Docket Entry "DE" 1).
Petitioner subsequently requested and was granted leave to
file an amended petition. (DE 9 and 16) . Petitioner has also
requested a hearing (DE 32) and a "Motion for Time
Limitation" (DE 34). As required by Rule 4 of the Rules
Governing Section 2254 Cases, the Court conducted a
preliminary review of the amended petition. Having considered
the amended habeas application (DE 16), Respondent's
Answer (DE 22), Movant's Responses (DE 33 and 35),
Movant's Supplement (DE 36), the record (DE 23), and
applicable law, the Court finds the petition should be
DENIED. (DE 16). Petitioner's requests
for an evidentiary hearing and for "time
limitations" are also DENIED. (DE 32
was charged with two counts of retaliation by threatening to
harm two police officers, enhanced to habitual status by two
prior convictions. (DE 23, pg. 411) . On March 28, 2014,
after petitioner pled not guilty to the offense and true to
the two enhancements, a jury found him guilty of each count
and further, found the enhancements to be true.
(Id., pg. 570) . Punishment was assessed at thirty
years imprisonment in each case with the sentences to run
concurrently. (Id., pg. 920). Petitioner timely
filed a notice of appeal and, in an unpublished opinion
issued on February 4, 2015, the Fourth Court of Appeals
affirmed his conviction. Oliver v. State, No.
04-14-00261-CR, 2015 WL 505072 (Tex. App. 2015). On April 22,
2015, the Court of Criminal Appeals refused Oliver's
petition for discretionary review. Oliver v. State,
PDR No. 220-15.
then filed a state writ application on June 2, 2015,
challenging his convictions. (DE 23, pgs. 868-84). The Court
of Criminal Appeals denied his application without written
order on January 20, 2016. (Id., pg. 845). Oliver
filed his federal writ petition and amended federal writ
petition on June 8, 2016 and January 1, 2017, respect ively.
(DE 1 and 16) . In his amended petition, Oliver alleges the
received ineffective assistance of trial and appellate
a. his motion for speedy trial was not ruled upon in spite of
the delay between his arrest and trial;
b. his attorney failed to subpoena witnesses;
c. his right to confront witnesses was violated when the
complainant's out-of-court statements were admitted at
d. his attorney failed to object to hearsay testimony;
e. his attorney failed to file a motion to suppress the
police officer's illegal search and seizure; and
f. his attorney failed to provide a copy of trial
received ineffective assistance when his appellate counsel
failed to raise grounds that the state habeas court found
could have been raised on appeal.
African Americans were excluded from the jury. (DE 16, pgs.
factual background was briefly summarized by the Fourth Court
of Appeals in its Memorandum Opinion, dated February 4, 2015,
According to one of the witnesses, who was Oliver's
common law wife, Oliver assaulted her, her sister, and her
friend after returning home late one evening. The argument
started when Oliver removed his and his wife's baby from
its crib against his wife's wishes. Oliver slammed his
wife's hand in the bedroom doorway, punched his
wife's sister in the jaw, and ultimately, threw all three
women out of the house. The wife called police. By the time
San Antonio police officers Matthew Martin and Vincent
Giardino arrived, Oliver had locked all three women out of
the house. Ultimately, the officers arrested Oliver based on
outstanding warrants. However, before the officers could
remove him from the home, Oliver verbally threatened his
wife, her sister, and her friend, reminding them of his gang
affiliation. Oliver made similar threats against the
officers, prompting the retaliation charges.
Oliver, 2015 WL 505072, *1.
Standards of Review
Review of State Court Adjudications
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 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)).
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 state
court's decision was objectively unreasonable, 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
"fairrainded 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,
Oliver 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." Id.
at 103; see also Bobby v. Dixon, 565 U.S. 23, 24
all of the grounds raised in a federal application for writ
of habeas corpus must have been "fairly presented"
to the state courts before being presented to the federal
courts. Picard v. Connor, 404 U.S. 270, 275 (1971).
Stated differently, the state court system must have been
presented with the same facts and legal theory upon which the
petitioner bases his assertions in order for a claim to be
exhausted. Id. at 275-77. Thus "it is not
enough . . . that a somewhat similar state-law claim was
made." Wilder v. Cockrell, 274 F.3d 255, 260
(5th Cir. 2001) (citing Anderson v. Harless, 459
U.S. 4, 6 (1982)). A petitioner "advance[ing] in federal
court an argument based on a legal theory distinct from that
relied upon in the state court, " "fails to satisfy
the exhaustion requirement." Id. at 259
(citing Vela v. Estelle, 708 F.2d 954, 958 n.5 (5th
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. at 182-85. Thus,
"evidence introduced in federal court has no bearing on
§ 2254(d)(1) review" and this Court's review
"is limited to the record that was before the state
court that adjudicated the claim on the merits."
2.Review of Sixth ...