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Cavitt v. Davis

United States District Court, S.D. Texas, Houston Division

February 16, 2018

Raymond Lee Cavitt, Petitioner,
Lorie Davis, Respondent.



         Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas petition challenging his conviction and life sentence for sexual assault of a child. Respondent filed a motion for summary judgment (Docket Entry No. 33), to which petitioner filed a response (Docket Entry No. 35).

         Having reviewed the motion, the response, the record, and the applicable law, the Court GRANTS the motion for summary judgment and DISMISSES this case for the reasons that follow.

         Background and Claims

Petitioner was convicted of sexual assault of a child in Harris County, Texas, and sentenced to life incarceration in October 2013. The conviction was affirmed on appeal, Cavitt v. State, 507 S.W.3d 235 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd), and the Texas Court of Criminal Appeals refused discretionary review. Petitioner's application for state habeas relief was denied. Ex parte Cavitt, No. 5, 496-15 (Tex. Crim. App. 2016). Petitioner raises the following grounds for federal habeas relief:

         1. Insufficiency of the evidence; 2. Ineffective assistance of trial counsel based on

a. counsel's failure to present certain testimony;
b. counsel's failure to inform him adequately of the advantages and disadvantages of testifying;
c. counsel's failure to object to certain expert witness testimony;
d. counsel's eliciting evidence of petitioner's prior convictions;
e. counsel's failure to inform him of a plea offer;
f. counsel's failure to challenge the indictment; and
g. the cumulative effect of counsel's errors;

         3. Prosecutorial misconduct in presenting perjured testimony;

         4. Denial of a speedy trial.

         5. Denial of due process caused by a defense witness's jail attire. Respondent argues that these claims are without merit and should be dismissed.

         Factual Background

         The intermediate state court of appeals set forth the following statement of facts in its opinion affirming petitioner's conviction.

R.R., the 14-year-old complainant, testified that she met the 59-year-old appellant through a classmate, D.R., who lived with appellant. R.R. and D.R. had been friends since third grade, and R.R. started spending time at appellant's apartment with D.R. when they were in the eighth grade. R.R. initially thought that appellant and D.R. were related because appellant called D.R. his granddaughter, and D.R. referred to appellant as her grandfather.
R.R. testified that D.R. had her own bedroom both at appellant's apartment and at D.R.'s mother's house. Most days, R.R. and D.R. would go to appellant's apartment after school. R.R. and D.R. would “chill and smoke” marihuana there. Appellant supplied marihuana and other drugs to D.R., which D.R. in turn shared with R.R. R.R. would occasionally spend the night with D.R., and they would alternate these sleepovers between appellant's place and D.R.'s mother's nearby house. Usually, when R.R. stayed with D.R., they would sleep in D.R.'s bedroom.
R.R. testified that, on January 2, 2012, she and D.R. were smoking in appellant's bedroom room [sic]. They were in appellant's room because the furniture had recently been removed from D.R.'s bedroom by a relative that moved out of the apartment, leaving only appellant's bed in the apartment. Appellant was there, and gave D.R. a drink containing “handlebars, ” a slang term for prescription Xanax. Appellant left for a few hours, during which time D.R. drank most of the drink, and gave the remainder to R.R. D.R. and R.R. then feel asleep on appellant's bed.
R.R. later woke with the weight of appellant lying on top of her. She testified that she was laying on her stomach, her pajama bottoms had been pulled down around her ankles, her socks pulled off, and she felt pain from appellant trying to force his penis into her vagina. When R.R. demanded to know what he was doing, appellant moved away and said, “I'm just playing with you.” Although it was dark, R.R. saw appellant clearly, and she testified that he was wearing a blue shirt and no pants. After unsuccessfully trying to rouse D.R., R.R. went to an apartment upstairs where some of appellant's relatives live[d].
Upstairs, R.R. told appellant's niece, Dee, and appellant's granddaughter, Gabriale, what appellant had done and that she was unable to wake D.R. before she fled appellant's apartment. Dee and Gabriale then went down to appellant's apartment and Gabriale carried a sleeping D.R. back upstairs to their apartment. Dee or Gabriale called D.R.'s mother, Juanita, who sent her boyfriend, Germane, to pick up D.R. and R.R. and take them back to Juanita's house.
R.R. testified that she did not call her mother to tell her what appellant had done because she was scared and did not want her mother to know that she was doing drugs. When R.R. returned home the following day, however, she told her mother what had happened. Her mother accompanied her to school and told the principal, who in turn contacted the police. R.R. was uncooperative when the first officer tried to interview her, but she eventually talked with a different officer and was then interviewed and examined at the Children's Assessment Center.
R.R. testified that, about one year later, D.R. and Gabriale pressured her to recant her accusation against appellant. Specifically, on January 28, 2013, D.R. wrote out a statement for R.R. and told R.R. to copy it in her own handwriting and sign it. R.R. did so, but testified at trial that she signed the statement only because she had been feeling pressure from appellant's friends and family to “make this go away.” She reiterated at trial that despite her written recantation, her original accusations against appellate were true.
The State also presented testimony from the investigating police officer and a doctor from the Children's Assessment Center about their interviews with R.R. The director of therapy and psychological services from the Children's Assessment Center also testified about ways in which a sexual predator will groom children of different ages, and the characteristics of certain targets.
The defense called Gabriale, who also testified about the events of January 2, 2012. Gabriale and Dee had gone to see appellant at his apartment that evening, and had seen D.R. and R.R. sleeping in appellant's bed. While there, Gabriale expressed to Dee that she was concerned about the girls sleeping in appellant's bed given that appellant has a history as a sex offender.
According to Gabriale, it was only about five minutes after she and Dee returned upstairs to their apartment that R.R. appeared banging on their door. R.R. was visibly shaken and told them that appellant had tried to molest her. Gabriale noticed that R.R. no longer had on the socks Gabriale had seen her wearing when she saw R.R. in appellant's bed. R.R told Gabriale that R.R. [sic] had tried to penetrate her and that it was painful. R.R. told Gabriale that she did not want to call the police or her mother because she had been doing drugs, but that she was upset that D.R. was still passed out in appellant's apartment. Gabriale testified about her and Dee going to retrieve D.R., carrying her upstairs, and then calling Juanita to have someone come pick up D.R. and R.R. Gabriale testified to seeing R.R. and D.R. at appellant's apartment the following day. Finally, Gabriale explained that after she and D.R. ran into R.R. about a year later, they took R.R. back to Gabriale's apartment to write a retraction letter. Gabriale admitted to “proofread[ing] it only, ” but denied that she or D.R. assisted R.R. in writing it.
Appellant testified on his own behalf. He testified to several prior convictions that led to a total of thirty-five years of incarceration, including a sixteen-year sentence for sexual assault. He explained that he had pleaded guilty to previous offenses because he was guilty, but that he was not guilty of the current charge.
Appellant testified that D.R.'s mom, Juanita, is his hospice provider. Among other ailments, he suffers from Hepatitis B and C, asthma, lung cancer, bone cancer, and diabetes. In his bedroom, he has oxygen tanks, a computer, and a headboard shelf that holds his medications. He denied allowing anyone to smoke anywhere in his apartment.
Appellant lets D.R. live with him because Juanita cannot control her behavior. R.R. spent a lot of time at appellant's apartment because she was friends with D.R., but appellant has made R.R. go home before. Appellant denied using any drugs that have not been properly prescribed, or giving drugs to anyone in his apartment.
Appellant testified that, on January 2, 2012, he got up about 6:30 a.m. and drove himself to Juanita's apartment, where he stayed until about 2:00 a.m. the next morning. When he returned to his apartment, he cleaned up his kitchen, and Gabriale and Dee came by to visit. After they left, he went in his room, took his medicine, and laid down. He saw D.R. in his bed, but testified that he did not see R.R. at all that day. He said that there was furniture in D.R.'s room on that date, but testified that he did not ask D.R. to move to her own bed because the air conditioner in his room was better. He also testified that some nights D.R. gets up in the middle of the night and comes to sleep in his room because she is scared or hears voices. He also denied owning a blue shirt.
Appellant dropped off to sleep and testified that he woke up when Dee came in and started shaking him. Dee told him “that girl” said somebody touched her. Appellant claims he did not know who “that girl” was, but that he immediately grabbed his phone and called 911 to report it. By the time the police arrived, appellant had learned from Dee that it was R.R. that claimed she was touched. When the police came out, appellant told them that he had not seen a girl in his apartment that day except D.R., and that he wanted to file a complaint.
Appellant testified that he heard noise outside when Juanita's boyfriend picked up D.R. and R.R., so he went outside and saw R.R. and D.R. getting into the car. That is the only time he saw R.R. and he testified that she was wearing a school uniform, not pajama pants.
Appellant testified that he left his apartment again on the morning of January 3, 2012, returning home about 4:30 in the afternoon. When he arrived back at his apartment, D.R. and R.R. were there. Appellant testified that he “spoke to” R.R., who told him “I didn't say you did that.” According to appellant, D.R. and R.R. stayed that night in D.R.'s bed in D.R.'s bedroom. Appellant went into his room and locked his door for the night. The next morning, appellant gave R.R. some of his pants to wear to school because she did not have a clean school uniform.
Sometime later, R.R.'s mother came to his apartment and confronted him. A few days after that, a police officer asked appellant to come in to be interviewed. Appellant took written statements by his brother and Juanita to give to the police. Appellant testified that he did not attempt to molest R.R. He claimed that his bedroom would have been too dark for R.R. to identify him, and that his medications prevent him from maintaining an erection.
Appellant was cross-examined about several inconsistencies between his trial testimony and earlier interviews with police. For example, contrary to his testimony at trial that he could not get an erection, he told police that his medication interfered with erections “sometimes, ” that he was sexual active, and that he had had sex one week before the alleged January 2, 2012 assault. Although D.R. and Juanita were subpoenaed and sworn in the first day of trial, they did not return to testify during appellant's case. Accordingly, after appellant testified, the trial court granted the defense a continuance until the following morning, and it issued attachments for D.R. and Juanita. It was eventually discovered that Juanita was out of town for work. D.R. was finally located and showed up at the courthouse several hours late where she was detained. After D.R. told the court that her mother was not available to come pick her up, the court then ordered her held in juvenile confinement so she could testify the next day. When D.R. was brought into court the following morning to testify, she was in handcuffs and in a brown jumpsuit. At defense counsel's request and in front of the jury, the court noted that D.R. was not charged with a crime and ordered her handcuffs removed.
D.R. testified that she lived with appellant for a couple of years and that he never touched her inappropriately. Contrary to appellant's testimony, she testified that there was not a bed in her bedroom on January 2, 2012. She and R.R. smoked marihuana all that day in appellant's bedroom while appellant was gone. D.R. denied that appellant gave drugs to her, testifying instead that she helped herself to appellant's Xanax when he was not there, and that she gave one to R.R. at R.R.'s request on January 2, 2012. She could not recall if she fell asleep first or R.R. fell asleep first in appellant's bed that night. D.R. did not wake up until after Gabriale carried her upstairs. She thus testified that she did not have any firsthand knowledge of anything that happened to R.R. while she was asleep. D.R. testified that she and R.R. went to her mother's house later that night. She also testified that R.R. told everyone that appellant “raped me . . . . He tried to stick it in.”
The next day, according to D.R., she and R.R. went back to appellant's apartment. She said R.R. did not want to go home and instead wanted to stay wherever D.R. was. D.R. and R.R. stayed at appellant's that night, and went to school the next morning. D.R. provided R.R. a pair of appellant's shorts to wear to school because R.R. did not have any clean clothes. D.R. testified that she was there at Gabriale's house in January 2013 when R.R. wrote out and signed the letter recanting her accusations against appellant. D.R. denied that she or Gabriale told R.R. what to put in the letter.
The defense rested, noting that it made a decision not to call Juanita and that it was withdrawing the motion for continuance based on the need to get her testimony.

Cavitt v. State, 507 S.W.3d at 239-43.

         The Applicable Legal Standards

         Habeas Review

         This petition is governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U .S.C. § 2254. Under AEDPA, federal habeas relief cannot be granted on legal issues adjudicated on the merits in state court unless the state adjudication was contrary to clearly established federal law as determined by the Supreme Court, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court. Harrington v. Richter, 562 U.S. 86, 98-99 (2011); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court, or if it confronts a set of facts that are materially indistinguishable from such a decision and arrives at a result different from the Supreme Court's precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).

         A state court unreasonably applies Supreme Court precedent if it unreasonably applies the correct legal rule to the facts of a particular case, or unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 409. In deciding whether a state court's application was unreasonable, this Court considers whether the application was objectively unreasonable. Id. at 411. “It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Richter, 562 U.S. at 102. As stated by the Supreme Court in Richter,

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal.

Id., at 102-03 (emphasis added; internal citations omitted).

         AEDPA affords deference to a state court's resolution of factual issues. Under 28 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying factual determination of the state court to be correct, unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 330-31.

         Summary Judgment

         In deciding a motion for summary judgment, the district court must determine whether the pleadings, discovery materials, and the summary judgment evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Once the movant presents a properly supported motion for summary judgment, the burden shifts to the nonmovant to show with significant probative evidence the existence of a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).

         While summary judgment rules apply with equal force in a section 2254 proceeding, the rules only apply to the extent that they do not conflict with the federal rules governing habeas proceedings. Therefore, section 2254(e)(1), which mandates that a state court's findings are to be presumed correct, overrides the summary judgment rule that all disputed facts must be construed in the light most favorable to the nonmovant. Accordingly, unless a petitioner can rebut the presumption of correctness of a state court's factual findings by clear and convincing evidence, the state court's findings must be accepted as correct by the federal habeas court. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).

         Insufficiency of the Evidence

         Petitioner claims that the evidence is insufficient to support the conviction for sexual assault of a child. Respondent correctly argues that this claim has been procedurally defaulted and may not be considered by the Court.

         A federal habeas petitioner may not obtain relief unless it appears that he has exhausted the remedies available in state court. 28 U.S.C. § 2254(b). State courts must be given the initial opportunity to address and if necessary correct alleged deprivations of federal constitutional rights. Castille v. Peoples, 489 U.S. 346, 349 (1989). For a claim to be exhausted, the state court system must have been apprised of the same facts and legal theory upon which the petitioner bases his federal assertions, Picard v. Connor, 404 U.S. 270, 276 (1971), and in a procedurally correct manner and context that will allow review of his claims solely on the merits. Castille, 489 U.S. at 351.

         All grounds raised in a federal habeas petition must first be presented to the highest state court before being presented to a federal court. Rose v. Lundy, 455 U.S. 509, 518-19 (1982); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). For exhaustion purposes, the Texas Court of Criminal Appeals is the highest state court with jurisdiction to review a petitioner's conviction. See Tex. Code Crim. Proc. art. 44.45. To proceed before that court, a petitioner must either file a petition for discretionary review or an application for a post-conviction writ of habeas corpus. Tex.R.App.P. 68.1; Tex. Code Crim. Proc. art. 11.07.

         Where a state prisoner seeks federal habeas relief on a claim that has not yet been presented to the state courts, the federal court may find the claim unexhausted and barred. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Where a petitioner has failed to exhaust his state court remedies but where the state court to which he would be required to present his unexhausted claims would now find those claims barred, federal habeas review is precluded by the federal procedural default doctrine. See id.; Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997).

         Under Texas law, a sufficiency challenge may be raised only on direct appeal and may not be raised in a state habeas proceeding. West v. Johnson, 92 F.3d 1385, 1389 n.18 (5th Cir. 1996); Clark v. Texas 788 F.2d 309, 310 (5th Cir. 1986); Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). When the Texas Court of Criminal Appeals is silent on its reasoning for denying an insufficiency of the evidence claim raised for the first time on state habeas review, this Court may assume that the claim was denied because it is not cognizable on state collateral review. Grigsby, 137 S.W.3d at 674. In these circumstances, reliance on the procedural default by the state court is established and presents an adequate state procedural ground barring federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 801-02 (1991). The Fifth Circuit Court of Appeals has also held that Texas's procedural rule barring consideration of record-based claims not raised on direct appeal in habeas proceedings is an adequate state ground for barring federal habeas review. Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007).

         Under such circumstances, a petitioner's claim is barred from federal habeas review unless he can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice in that he is actually innocent of the offense for which he was convicted. Coleman, 501 U.S. at 750. To establish actual innocence, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and show that it was “more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord Finley v. Johnson, 243 F.3d 215, 221 (5th Cir. 2001).

         In the instant case, petitioner did not challenge the sufficiency of the evidence in the intermediate court of appeals proceedings. Although he did raise the claim on state collateral review, the Texas Court of Criminal Appeals denied the claim. Ex parte Cavitt, WR-5, 496-15. In rejecting the claim, the state trial court on collateral review concluded that petitioner's “challenge to the sufficiency of the evidence is not cognizable in post-conviction habeas proceedings.” Id. at 167. Consequently, the denial of habeas relief by the Texas Court of Criminal Appeals stands as a procedural dismissal under Grigsby.

         Petitioner's challenge to the sufficiency of the evidence is procedurally defaulted and barred from consideration by this Court. Petitioner does not argue, much less demonstrate, cause and prejudice or fundamental miscarriage of justice, and his challenge to the sufficiency of the evidence must be dismissed. Even assuming the issue were properly before this Court, the Court has reviewed the record in the interest of justice and finds sufficient evidence to support petitioner's conviction. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

         Ineffective Assistance of Trial Counsel

         The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. U.S. Const. amend. VI. A federal habeas corpus petitioner's claim that he was denied effective assistance of counsel is measured by the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To assert a successful ineffectiveness claim, a petitioner must establish both constitutionally deficient performance by counsel and actual prejudice as a result of counsel's deficient performance. Id. at 687. The failure to ...

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