United States District Court, N.D. Texas, Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE
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.
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)
state appellate court summarized the evidence in the case as
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.)
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.)
Rule 5 Statement
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).