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Mallard v. Davis

United States District Court, N.D. Texas, Amarillo Division

February 20, 2018

CHANSLER DEPAUL MALLARD, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

          Lee Ann Reno Judge.

         Petitioner CHANSLER DEPAUL MALLARD has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his conviction out of the 108th Judicial District Court of Potter County, Texas, for the felony offense of aggravated assault with a deadly weapon and the resultant 40-year sentence. For the reasons set forth below, the United States Magistrate Judge is of the opinion petitioner's application for federal habeas corpus relief should be DENIED.

         I. PROCEDURAL HISTORY

         On May 9, 2012, petitioner was charged by indictment in Cause No. 65, 213 with the offense of aggravated assault with a deadly weapon, enhanced with a previous felony conviction. [ECF 16-12 at 69]. Petitioner entered a plea of not guilty to the offense; however, on April 26, 2013, after a bench trial, the trial court found petitioner guilty and sentenced him to a 40-year term of imprisonment. See State v. Mallard, No. 65, 213-E. [ECF 16-12 at 71].

         On September 25, 2013, the state intermediate appellate court affirmed petitioner's conviction on direct appeal. Mallard v. State, 07-13-00145-CR, 2013 WL 5425337, at *1 (Tex. App.-Amarillo Sept. 25, 2013, no pet.). Petitioner did not file a petition for discretionary review.

         Petitioner sought collateral review of his Potter County conviction by filing a state habeas corpus petition and, on November 26, 2014, the Texas Court of Criminal Appeals denied petitioner's state habeas application without written order. In re Mallard, No. 82, 418-01. [ECF 16-11].

         On January 10, 2015, petitioner deposited the instant federal habeas petition in the prison mail system and, on March 17, 2015, respondent filed an answer.

         II. PETITIONER'S ALLEGATIONS

         Petitioner contends he is being held in violation of the Constitution and laws of the United States because:

1. He received ineffective assistance of trial counsel when counsel failed to:
A. Secure a competency hearing;
B. Present an expert witness to assist with an insanity defense; and
C. Investigate petitioner's mental health background and present mitigating evidence at sentencing.
2. He was denied his right to compulsory process because trial counsel failed to call an expert witness to testify as to his mental health at a competency hearing and at trial.
3. The prosecutor did not disclose favorable evidence to the defense.

         III. STANDARD OF REVIEW

         In her March 17, 2015 answer, respondent thoroughly and accurately briefed statutory and case law regarding both the applicable standards of review under 28 U.S.C. §2254 proceedings and claims of ineffective assistance of counsel. [ECF 18 at 4-8]. The Court will not repeat respondent's recitation regarding these standards of review, except to acknowledge an ineffective assistance of counsel claim requires petitioner to show defense counsel's performance was both deficient and prejudicial under the two-pronged standard of Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If a petitioner fails to show either the deficiency or prejudice prong of the Strickland test, the court need not consider the other prong. Id. at 697. Moreover, when a state prisoner asks a federal court to set aside a conviction or sentence due to ineffective assistance of counsel, the federal court is required to use the “doubly deferential” ...


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