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Hernandez v. Davis

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

November 8, 2017

RITCHIE HERNANDEZ, Petitioner,
v.
LORIE DAVIS, Director, 1 Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Ritchie Hernandez, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.

         I. Procedural History

         In June 2004 petitioner was indicted in Tarrant County, Texas, Case No. 1287601D, for the murder of Charles Perry. (Clerk's R. at 3.) Following a jury trial, the jury found petitioner guilty and assessed his punishment at 35 years' Effective May 4, 2016, Lorie Davis replaced William Stephens as director of the Correctional Institutions Division of the Texas Department of Criminal Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is automatically substituted as the party of record. confinement. (Id. at 74.) The Second District Court of Appeals of Texas affirmed the trial court's judgment on the jury verdict, the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review, and the United States Supreme Court denied his petition for writ of certiorari. (Docket Sheet at 1- 2.) Petitioner also filed a state postconviction application for writ of habeas corpus challenging his conviction, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. (Action Taken)

         The state appellate court summarized the evidence in the case as follows:

On March 7, 2004, Lisa Jones and her brother were driving in the Westpoint area of Fort Worth when Jones saw a man covered in blood lying face-down in a ditch. Jones saw another man, later identified as appellant, sitting behind the wheel of a car on the side of the road near the ditch. Jones pulled over to the nearest stop sign and called 9-1-1.
While Jones waited for the police to arrive, she saw appellant get out of the car, walk over to the man in the ditch, try to lift him, fail, and lay the man back on the ground. Appellant, who appeared to be in shock, next walked back to his car, leaned on its bumper, rocked back and forth, and attempted to use his cell phone.
Later, Latasha Morgan, a nurse's aide, also drove by. Morgan saw appellant kneeling on the ground near a body and crying hysterically. Morgan got a towel from her car to use as a pressure bandage, brought the towel to appellant, and told appellant to apply pressure. Appellant did not comply, and told Morgan that "[t]hose niggers did it."
When the paramedics arrived, they noticed that the victim, who was later identified as Charles Perry, had several deadly chest wounds. Although the paramedics took Perry to the hospital, Perry was dead before he left the scene.
Before Perry was transported, however, Officer Shawn Elliott from the White Settlement Police Department stopped at the scene and saw appellant lying over Perry in the ditch. Both appellant and Perry were covered in blood. Officer Elliott asked appellant what happened, and appellant said that he had picked up Perry from a motel on Highway 80. According to appellant, Perry was already injured when he picked him up. When Officer Elliott asked why appellant did not transport Perry to a hospital, appellant said that Perry did not want to go because he had some illegal narcotics on him. Officer Elliott next asked appellant for more details about where the assault had taken place, and this time appellant stated that he had picked up Perry at Rosedale and 1-35, which is not near Highway 80.
An autopsy revealed that Perry died of multiple stab wounds and blunt force trauma to the head. Three days after Perry died, the officers obtained consent to search a fenced-off area near where Perry's body was found; during this search, they found a butterfly knife with Perry's blood on it lying several feet from the nearby fence line. The knife contained the blood of at least one other person.

(Mem. Op. at 2-3, 5-8.)

         II. Issues

         In one ground, petitioner claims that his trial counsel was ineffective by failing to investigate the butterfly knife allegedly used in the murder. In support, he asserts that

post-conviction forensic testing establishes that the knife allegedly used as the murder weapon was in fact incompatible with the victim's wounds. Had trial counsel investigated the matter and consulted with an expert, he would have ascertained as much. Counsel was profoundly ineffective on this basis because the location in which the knife was discovered was pointed to as crucial evidence in [his] guilt.

(Pet. at 6.)

         Ill, Rule 5 Statement

         Respondent believes that the petition is timely filed, that the petition is not successive, and that petitioner has sufficiently exhausted his state-court remedies as to his claim. (Resp't's Answer at 7.) 28 U.S.C. §§ 2244(b), (d) & 2254(b)(1).

         IV. ...


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