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Carter v. Davis

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

February 26, 2018

HUGH AUDRIE CARTER, TDCJ-CID #1905284 Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         Texas state inmate Hugh Audrie Carter filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2014 state-court convictions for aggravated robbery. The respondent, Lorie Davis, has answered and moved for summary judgment. (Docket Entry No. 14). Carter has not responded. Based on careful consideration of the pleadings, the motion, the record, and the applicable law, this court concludes that Carter has not stated meritorious grounds for federal habeas relief, denies his § 2254 petition, and, by separate order, enters final judgment. The reasons are explained below.

         I. Background and Claims

         Carter pleaded guilty to two counts of aggravated robbery with a deadly weapon, without a sentence recommendation, and was convicted in a Harris County, Texas court, in Cause Numbers 1366763 and 1367859. In January 2014, after a presentence investigation and punishment hearing, the trial court sentenced Carter to concurrent sentences of life imprisonment in the Texas Department of Criminal Justice for each offense.

         The Fourteenth Court of Appeals of Texas affirmed Carter's convictions and sentences in October 2014. Carter v. State, Nos. 14-14-00060-CR and 14-14-00061-CR, 2014 WL 5780691 (Tex. App.-Houston [14th Dist.] 2014) (mem. op.). The Texas Court of Criminal Appeals refused discretionary review in January 2015. Carter v. State, Nos. PD-1548-14 and PD-1549-14 (Tex. Crim. App. Jan. 14, 2015). Carter filed two applications for a state writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure, challenging each of his convictions. The Court of Criminal Appeals denied those applications without a hearing or written order, on the findings of the trial court, in January 2016. Ex parte Carter, Application Nos. 83, 923-01 and 83, 923-02.

         Carter filed this federal petition in December 2016. He raises the following grounds for federal habeas relief:

1. Ineffective assistance of trial counsel, who:
a. had a conflict of interest;
b. failed to investigate the case and file pretrial motions; and
c. failed to file a motion to sever the two causes.
2. Involuntary guilty plea as a result of trial counsel's ineffectiveness.
3. Trial-court error in failing to inquire into the conflict of interest.
4. Ineffective assistance of appellate counsel, who:
a. failed to raise the issue of trial counsel's conflict of interest; and
b. denied him the right to counsel by filing a motion to withdraw.
5. Breach of the plea agreement in that the State failed to fulfill its promise of a 50-year sentence cap.

(Docket Entry No. 1, at 6-7, 11). The respondent argues that Carter's claims are unexhausted, procedurally barred, waived, or without merit. (Docket Entry No. 14). Each claim and argument is analyzed against the record and the applicable legal standards.

         II. The Legal Standards

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (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 involves materially indistinguishable facts and arrives at a different result. 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 different and inappropriate context, or unreasonably refuses to extend that principle to a context to which it should apply. Williams, 529 U.S. at 409. The issue is whether the state court's application was objectively unreasonable. Id. “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 the Supreme Court stated 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 requires federal habeas courts to defer to a state court's resolution of factual issues. Under 28 U.S.C. § 2254(d)(2), a state-court decision on the merits based on a factual determination will not be overturned 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 presumes the state court's factual determination 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. This presumption extends not only to express fact findings, but also to implicit findings. Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citations omitted). “The presumption is especially strong when the state habeas court and the trial court are one in the same[, ]” as they were in this case. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000) (collecting cases); see also Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir. 2005) (“A trial court's credibility determinations made on the basis of conflicting evidence are entitled to a strong presumption of correctness and are ‘virtually unreviewable' by the federal courts.”).

         Summary judgment is proper when the record shows “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(a). In ordinary civil cases, a district court considering a motion for summary judgment must construe disputed facts in a light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”). “As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). However, a court on summary judgment must view the evidence through “the prism of the substantive evidentiary burden.” Anderson, 477 U.S. at 254. Congress, through AEDPA, has constricted both the nature and availability of habeas review. This court applies general summary judgment standards to the extent they do not conflict with the AEDPA. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (“[Rule 56] applies only to the extent that it does not conflict with the habeas rules.”), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).

         Carter is representing himself. Self-represented habeas petitions are construed liberally and are not held to the same stringent and rigorous standards as pleadings lawyers file. See Martin v. Maxey, 98 F.3d 844, 847 n.4 (5th Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988); Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981). This court broadly interprets Carter's state and federal habeas petitions. Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).

         III. Discussion

         A. The Unexhausted and Procedurally Barred Claims

         Carter raises several of his claims in federal court for the first time. The claims not previously raised include that: (1) trial counsel was ineffective for failing to file a motion to sever the two causes; (2) appellate counsel was ineffective for failing to raise the issue of trial counsel's conflict of interest; (3) appellate counsel was ineffective for moving to withdraw as counsel; and (4) the State breached the plea agreement by failing to fulfill its promise of a 50-year cap on the sentence.

         A federal court may not grant habeas corpus relief on behalf of a person in state custody unless “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”). To satisfy this requirement, a claim must be “fairly presented” to the state's highest court for review. See Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999) (citing Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1984)). The doctrine of exhaustion “require[s] a state prisoner to present the state courts with the same claim he urges upon the federal courts.” Wilder v. Cockrell, 274 F.3d 255, 261 (5th Cir. 2001) (quoting Picard v. Conner, 404 U.S. 270, 276 (1971)) (emphasis in the original).

         The record confirms that Carter did not raise the three claims of ineffective assistance or the claim that the State breached the plea agreement in his direct appeal or in a properly filed state habeas application. He did not exhaust his available state court remedies as to these claims. The respondent argues that these unexhausted claims are procedurally defaulted because the state court would now find them procedurally barred.

         “[I]f a petitioner fails to exhaust state remedies, but the court to which he would be required to return to meet the exhaustion requirement would now find the claim procedurally barred, then there has been a procedural default for purposes of federal habeas corpus relief.” Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2000) (citations omitted). Carter's unexhausted claims could have been raised in his state habeas corpus applications. A successive petition raising these claims in state court would be barred by the Texas abuse-of-the-writ statute. See T ex. Code Crim. Proc. Ann. art. 11.07, § 4(a). This default is an adequate state procedural ground to bar state, and therefore federal, review of the unexhausted claims, unless an exception applies. Finley, 243 F.3d at 220 (citing Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995)).

         To show an exception for federal habeas review, a petitioner who has procedurally defaulted a claim in state court must demonstrate: (1) “cause for the default and actual prejudice as a result of the alleged violation of federal law”; or (2) “that failure to consider the claims will result in ...


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