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Morgan v. Davis

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

November 28, 2017

LARRY JOE MORGAN, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          TERRY R. MEANS, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Factual and Procedural History

         On 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.)

         The 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 assault.

         II. Issues

         Petitioner'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.

         III. RULE 5 STATEMENT

         Respondent 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. 27.)

         IV. LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF

         A § 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.

         Additionally, 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).

         V. Discussion

         1. Ineffective Assistance of Counsel

         A 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 ...


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