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Hardin v. Davis

United States District Court, W.D. Texas, Austin Division

December 8, 2017





         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates.

         Petitioner Kevin Todd Hardin is pro se and has paid the full filing fee in this matter. Before the Court are Petitioner's Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Docket Entry “DE” 1), Respondent's Answer (DE 9), and Petitioner's Reply (DE 11). For the reasons set forth below, the undersigned recommends that the Application for Writ of Habeas Corpus be denied.


         Respondent has custody of Hardin pursuant to a judgment and sentence imposed by the 424th District Court of Burnet County, Texas. A jury found Hardin guilty of evading arrest with a vehicle, and concluded Hardin had two prior felony convictions. The jury assessed punishment at a term of 99 years' imprisonment. In his habeas action Hardin alleges he was subjected to trial court error and prosecutorial misconduct, and that he was denied his right to the effective assistance of trial and appellate counsel.


         A. Factual Background

         The following facts are taken from the State's brief in Hardin's appeal:

On April 23, 2013, Granite Shoals Police Officer John Ortiz was on routine patrol when he observed Appellant driving on South Phillips Ranch Road at 4:00 a.m. traveling at a high rate of speed in a 30 m.p.h. zone. RR Vol. 3 Pages 15-17. Officer Ortiz was able to catch up to Appellant sufficiently to record Appellant's speed to be 51 m.p.h. RR Vol. 3 Pages 17-18. Officer Ortiz activated his blue and red lights to effect a traffic stop of Appellant for speeding. RR Vol. 3 Page l8. Instead of stopping Appellant accelerated to speeds beyond 60 m.p.h. and made attempts to flee from Officer Ortiz. RR Vol. 3 Pages 18-22. On two occasions during the chase Officer Ortiz was able to see the driver of the vehicle such that he was able to recognize that the driver was Appellant. RR Vol. 3 Pages 19-20. Appellant's vehicle eventually became stuck at which time Appellant abandoned his vehicle and fled on foot. RR Vol. 3 Page 22. Officer Ortiz was able to locate and detain Appellant at a carport about 150 yards from his abandoned vehicle. Vol. 3 Page 22.

(DE 10-10 at 9-10).

         B. State Court Proceedings

         A grand jury returned an indictment on August 6, 2013, charging Hardin with one count of using a vehicle to flee from a peace officer to avoid arrest. (DE 10-4 at 4).[1] The indictment further alleged Hardin had two prior felony convictions for burglary of a habitation. (DE 10-4 at 4-5). Hardin was appointed counsel to represent him in his criminal proceedings. (DE 10-4 at 11).

         At Hardin's trial the State presented the testimony of Officer Ortiz and a “dash cam” video of the pursuit of Hardin and his arrest. (DE 10-7 at 15-22). The State rested after the presentation of this evidence. (DE 10-7 at 44). Hardin did not testify or present any evidence in his defense. Id. Defense counsel argued to the jury that there was insufficient evidence to identify Hardin as the driver of the fleeing vehicle. (DE 10-7 at 54-56). The jury deliberated for approximately two and a half hours. (DE 10-4 at 62). During deliberations the jury asked to review the dash cam video, which they were permitted to do. (DE 10-7 at 60). The jury also requested the police reports of the incident, which was denied because the reports had not been admitted as evidence. Id. The jury also requested a transcript of Officer Ortiz' testimony. This request was denied:

THE COURT: . . . [this is the ] third note from the jury. . . . The question is “Can I get a copy of the officer's testimony?” My response is “No”. Everybody [content] with that response? The State?
MR. CROWTHER: My feeling is you probably should tell the jury that you outlined the procedure for getting that earlier.
THE COURT: If they didn't listen I'm not telling them again. That's my response to that. Defense have an objection?
MR. WATSON: No, Your Honor.

(DE 10-7 at 61). The jury then returned a verdict of guilty as charged. (DE 10-7 at 62).

         Hardin elected to have the jury assess his punishment. (DE 10-6 at 23). He pleaded not true to the indictment's enhancement allegations. (DE 10-8 at 7-8). During the sentencing phase, in addition to providing evidence of Hardin's convictions on two charges of burglary of a habitation, the State presented certified proof of three other convictions-a misdemeanor failure to identify and two state jail felony theft convictions. (DE 10-8 at 14-17; DE 10-9 at 14-37). Hardin presented two character witnesses at the sentencing phase of his proceedings, who testified as to his good character. (DE 10-8 at 21-27, 33-38). Hardin's counsel, without objection, urged the jury to ignore the evidence as to one of the enhancement allegations and to assess punishment at less than 25 years to life. (DE 10-8 at 55-56).

         During argument on sentencing, the prosecutor made reference to the parole language contained in the charge to the jury. (DE 10-7 at 49-5, 59). The following colloquy resulted:

[State:] Now, of some interest in this is this offense is a quarter-time offense, which means that when your actual time served-
[Defense:] Objection, Your Honor. He's going into parole.
[The Court:] He's just arguing what the instructions say, Mr. Watson, I think.
[State:] Yes. It's a quarter-time offense, which means-and I'm just using 40 because it make its [sic] really easy for me to do the math. If you sentence him for forty-
[Defense:] I'll just object that it's not proper. It's in the instruction. The jury just doesn't need-they can read the instructions themselves. They don't need him talking about it. We just believe it's an improper closing argument.
[The Court:] I'll overrule your objection.

Hardin v. State, 2015 WL 1514483, at *1 (Tex. App.-Austin 2015, pet. ref'd). After deliberations, the jury found both enhancement allegations to be true and assessed punishment at a term of 99 years' imprisonment. (DE 10-4 at 56).

         Hardin was appointed appellate counsel, who filed a motion for a new trial. (DE 10-4 at 60-61). The motion for a new trial was denied by operation of law. Hardin then appealed his conviction and sentence. Hardin asserted the trial court erred by overruling his objections to the prosecutor's comments during closing argument. Hardin, 2015 WL 1514483, at *1. The Texas Court of Appeals denied relief, finding some of the prosecutor's comments improper, but finding the error harmless. Id. at *2-*3. The Texas Court of Criminal Appeals denied a petition for discretionary review.

         Hardin filed an application for a state writ of habeas corpus, asserting he was denied the effective assistance of trial and appellate counsel. (DE 10-22 at 12-13, 16). Hardin asserted his appellate counsel was ineffective because he failed to file a substantive motion for a new trial and failed to confer with trial counsel regarding a motion for a new trial. (DE 10-22 at 16). Hardin further asserted trial court error, raising the same claim denied in his appeal. (DE 10-22 at 14). Hardin also argued the trial court erred by failing to re-instruct the jury as to how to obtain a witness' testimony during deliberations. (DE 10-22 at 15). Hardin further alleged prosecutorial misconduct, arguing the prosecutor improperly bolstered the credibility of Officer Ortiz and that the prosecutor's comments regarding parole were improper. (DE 10-22 at 18).

         The state trial court ed Hardin's trial counsel to provide an affidavit responding to Hardin's claims of ineffective assistance of counsel. (DE 10-22 at 45). Trial counsel provided the requested affidavit, (DE 10-22 at 46-47), which stated in part:

My actions in Mr. Hardin's case were appropriate. Our office had hoped that we might have some jury nullification in this case as the officers had kicked him until he urinated on himself. However, the facts were not good. One of the videos from the police car clearly showed Hardin evading from the police car, even going into a children's playground. Hardin's face was viewed in that video as he passed the police car with his window down. The ...

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