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Bonner v. Davis

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

February 23, 2018

DON A. BONNER, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Don A. Bonner, 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.


         On November 2, 2012, in the 432nd Judicial District Court, Tarrant County, Texas, No. 1269186D, a jury found Petitioner guilty of unlawful possession of a firearm by a felon and found the habitual-offender notice in the indictment true. It assessed Petitioner's punishment at 42 years' confinement. (Clerk's R. 80, doc. 8-13.) Petitioner appealed his conviction, but the Second District Court of Appeals of Texas affirmed the trial court's judgment and the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review. (Docket Sheet 1, doc. 8-2.) Petitioner also sought state post-conviction habeas relief by filing a state application for a writ of habeas corpus, raising the claims presented in this federal petition, which was denied by the Texas Court of Criminal Appeals without written order. (SH16 & Action Taken, docs. 9-13 & 9-15.)

         The appellate court set out the factual background of the case as follows:

[Petitioner]'s mother Mary Bonner passed away on January 22, 2012. After Mary's funeral on January 28, 2012, [Petitioner], his wife Marguerita Bonner, his brother Virdis Bonner, Virdis's fiancee Shekelia Campbell, and Virdis's stepdaughter Keiumbria (Bree) Nelson went to Mary's house at 2804 Gardenia Drive in Fort Worth. Around 7:30 that evening, [Petitioner] asked his brother and his brother's family to leave so that [Petitioner] could return to his home, which was located on Avenue M, and change clothes. Virdis asked Shekelia and Bree to go to their car and wait for him. Shekelia and Bree heard [Petitioner] and Virdis arguing about why [Petitioner] had asked them to leave. Marguerita and Shekelia broke up the argument between the brothers, and Shekelia got Virdis to leave. As Shekelia and Virdis were getting in their car, they saw [Petitioner] standing in the garage with a gun in his hand, yelling at Virdis. Virdis called 911.
When police arrived, they obtained [Petitioner]'s oral and written consent to search the residence, and he told them that there was a handgun in a dresser in the back bedroom. A search of the residence revealed a loaded handgun in the dresser, ammunition, and two magazines-one in the dresser drawer with the gun and another in the kitchen.

(Mem. Op. 2, doc. 8-3.)

         II. ISSUES

         Petitioner raises three grounds for relief:

(1) Section 46.04(a)(2) of the Texas Penal Code is unconstitutionally overbroad and impermissibly vague;
(2) there was no evidence or insufficient evidence to prove mens rea; and
(3) he was denied effective assistance of counsel and a fair trial.

(Pet. 6-7, doc. 1.)


         Respondent believes that Petitioner has exhausted his state-court remedies and that the petition is neither time barred nor subject to the successive-petition bar. (Resp't's Answer 5, doc. 11.)


         A § 2254 habeas petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (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 determined 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. 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100-01 (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. Further, when the Texas Court of Criminal Appeals denies relief in a state habeas-corpus application without written order, it is “presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington, 562 U.S. at 99. In such a situation, a federal court may assume 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)[1]; Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); 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

         A. Constitutionality of Texas Penal Code § 46.04(a)(2)

         Under his first ground, Petitioner claims that § 46.04(a)(2) is unconstitutionally overbroad and impermissibly vague because “it does not clearly give notice of the forbidden conduct as to the . . . meaning [of] ‘the premises in which he live[s].'” (Pet. 6 & Mem. 5-13, doc. 1.) Petitioner raised this claim for the first time in his state habeas application, and the state habeas court expressly found that the claim was forfeited by Petitioner's failure to object at trial. (SH16 105, doc. 9-15.)

         Under the procedural-default doctrine, a federal habeas court will not review a claim if the last state court to consider the claim expressly and unambiguously based its denial of relief on a state procedural default.[2] Coleman v. Thompson, 501 U.S. 722, 729 (1991); Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). Texas's contemporaneous-objection rule is an independent and adequate state procedural bar to federal habeas review. See Amos v. Scott, 61 F.3d 333, 341 (5th Cir. 1995). Thus, the procedural default in state court precludes federal habeas review of the claim. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002).

         To overcome a state procedural bar, a petitioner must demonstrate either cause for the procedural default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claim will result in a fundamental miscarriage of justice-i.e., that he is actually innocent of the offense for which he was convicted. Coleman, 501 U.S. at 750. Such showing not having been demonstrated by Petitioner, this claim raised for the first time in his state habeas application is procedurally barred from this Court's review.

         B. No. Evidence or ...

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