United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
R. MEANS, UNITED STATES DISTRICT JUDGE.
the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by petitioner, Larry Joe Morgan,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions
Division, Respondent. After having considered the pleadings
and relief sought by Petitioner, the Court has concluded that
the petition should be denied.
Factual and Procedural History
March 22, 2013, petitioner was convicted by a jury in the
396th Judicial District Court, Tarrant County, Texas, Case
No. 1249395D, of aggravated assault with a deadly weapon.
(Clerk's R. 94, doc. 21-2.) Subsequently, the trial court
found the repeat-offender notice in the indictment true and
sentenced Petitioner to twenty years' confinement.
(Id. at 7, 94.) Petitioner appealed his conviction,
but his appellate counsel filed an Ander's
brief, and the appellate court, finding no arguable grounds,
affirmed his conviction. The Texas Court of Criminal Appeals
refused then Petitioner's petition for discretionary.
(Mem. Op. 2, doc. 22-15; Docket Sheet 2, doc. 21-1.)
Petitioner also filed a postconviction state habeas-corpus
application challenging his conviction, which was denied by
the Texas Court of Criminal Appeals without written order on
the findings of the trial court. (Action Taken, doc. 23-2.)
This is Petitioner's second federal habeas petition
challenging the same conviction. The first was dismissed on
exhaustion grounds. (Op. and Order 6-8, Morgan v.
Stephens, No. 4:14-CV-635-Y, doc. 29.)
evidence at trial reflected that Petitioner met Anthony Moore
at Cobb Park in Fort Worth, Texas, where people often
gathered to drink beer and socialize. (Reporter's R. 28,
doc. 21-6.) The two bought beers from Michael Connor, who was
there with his girlfriend, Terri Carrol, and a group of
friends. A dispute over the beer occurred between Petitioner
and Connor. Petitioner left the park but returned shortly
thereafter and confronted Connor who was sitting in a lawn
chair next to Carrol. Connor, who was unarmed, testified that
at some point he thought Petitioner was pulling a weapon out
of his pocket and he put Petitioner in a bear hug and the two
went down on the ground. When Connor realized that he was
being cut by Petitioner, he attempted to get up and run but
his right foot had been nearly severed from his leg. He
hopped around a pickup truck in an effort to escape
Petitioner, who continued to pursue him. Petitioner was then
subdued by several bystanders, one of whom hit Petitioner
over the head with a folding stool and one of whom admitted
to pulling his own knife on Petitioner. Petitioner's
industrial sheetrock knife was found at the scene. With some
inconsistencies, Carrol and five other eyewitnesses testified
similarly to the events. All the witnesses testified that at
no time did Connor hit, kick, stab, or threaten Petitioner or
act as the aggressor. The defense elicited testimony on
cross-examination that the injury was likely caused by a
larger weapon and presented expert testimony that, due to the
nature of the injury, a heavier “instrument” such
as a machete was likely used and not the sheetrock knife.
Petitioner did not testify at trial, but defense counsel
attempted to establish through cross-examination that
Petitioner was acting in self-defense and Petitioner
testified at the punishment phase that Connor's ankle was
cut while Connor was “stomping” and kicking
Petitioner as he sat on the ground. According to Petitioner,
he was shielding his face with the knife during Connor's
claims fall within the following general categories: (1)
ineffective assistance of counsel; (2) violation of his
rights under the Fourth, Fifth, Eighth, and Fourteenth
Amendments; and (3) defects in the state-habeas proceedings.
(Pet. 6-7, doc. 1; Am. Pet. 7-8, doc. 18.) His claims are
multifarious and addressed as thoroughly as practical below.
RULE 5 STATEMENT
believes that the petition is neither time-barred nor
successive but, because of the multifarious nature of
Petitioner's claims, reserves the exhaustion and
procedural-default defenses. (Resp't's Answer 7, doc.
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
§ 2254 habeas petition is governed by the heightened
standard of review provided for in the AEDPA. See 28 U.S.C.
§ 2254. Under the Act, a writ of habeas corpus should be
granted only if a state court arrives at a decision that is
contrary to or an unreasonable application of clearly
established federal law as established by the United States
Supreme Court or that is based on an unreasonable
determination of the facts in light of the record before the
state court. See 28 U.S.C. § 2254(d)(1)-(2);
Harrington v. Richter, 562 U.S. 86, 100 (2011). This
standard is difficult to meet but “stops short of
imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.”
Harrington, 562 U.S. at 102.
the statute requires that federal courts give great deference
to a state court's factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section
2254(e)(1) provides that a determination of a factual issue
made by a state court shall be presumed to be correct. When
the Texas Court of Criminal Appeals denies relief on a state
habeas-corpus application without written order, typically it
is an adjudication on the merits, which is likewise entitled
to this presumption. Harrington, 562 U.S. at 100;
Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997). In such a situation, a federal court may assume
that the state court applied correct standards of federal law
to the facts, unless there is evidence that an incorrect
standard was applied. Townsend v. Sain, 372 U.S.
293, 314 (1963); Schartzle v. Cockrell, 343 F.3d
440, 443 (5th Cir. 2003); Catalan v. Cockrell, 315
F.3d 491, 493 n.3 (5th Cir. 2002); Valdez, 274 F.3d
at 948 n.11; Goodwin v. Johnson, 132 F.3d 162, 183
(5th Cir. 1997). A petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell,
537 U.S. 322, 340 (2003); Williams v. Taylor, 529
U.S. 362, 399 (2000).
Ineffective Assistance of Counsel
criminal defendant has a constitutional right to the
effective assistance of counsel at trial and on the first
appeal as of right. U.S. Const. amend. VI, XIV; Evitts v.
Lucey,469 U.S. 387, 396 (1985); Strickland v.
Washington, 466 U.S. 668, 688 (1984). To establish
ineffective assistance of counsel a petitioner must show (1)
that counsel's performance fell below an objective
standard of reasonableness and (2) that but for counsel's
deficient performance the result of the proceeding would have
been different. Strickland, 466 U.S. at 688. Both
prongs of the Strickland test must be met to
demonstrate ineffective assistance. Id. at 687, 697.
In applying this test, a court must indulge a strong
presumption that counsel's conduct fell within the wide
range of reasonable ...