United States District Court, N.D. Texas, Fort Worth Division
DON A. BONNER, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
OPINION AND ORDER
R. MEANS UNITED STATES DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL HISTORY
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.)
appellate court set out the factual background of the case as
[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.)
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
(Pet. 6-7, doc. 1.)
RULE 5 STATEMENT
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.)
STANDARD OF REVIEW
§ 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.
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); 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).
Constitutionality of Texas Penal Code §
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.
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. 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).
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.
No. Evidence or ...