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Oliver v. Davis

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

November 6, 2017

DARRICK DAVON OLIVER, TDCJ No. 1921743, Petitioner,
v.
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.

         Darrick 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 and 34).

         I. Procedural Background

         Petitioner 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 Petitioner timely filed a notice of appeal and, in an unpublished opinion issued on February 4, 2015, the Fourth Court of Appeals affirmed his conviction.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.

         Oliver 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 following:

         1. He received ineffective assistance of trial and appellate counsel when-

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 trial;
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 transcripts.

         2. He received ineffective assistance when his appellate counsel failed to raise grounds that the state habeas court found could have been raised on appeal.

         3. African Americans were excluded from the jury. (DE 16, pgs. 6-13).

         II. Factual Background

         The factual background was briefly summarized by the Fourth Court of Appeals in its Memorandum Opinion, dated February 4, 2015, as follows:

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.[1]

Oliver, 2015 WL 505072, *1.[2]

         III. Standards of Review

         1. Review of State Court Adjudications

         Oliver'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 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 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 (2011).

         Furthermore, 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 Cir. 1983)).

         Additionally, 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." Id.

         2.Review of Sixth ...


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