United States District Court, N.D. Texas, Fort Worth Division
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, Haywood
Henderson, a state prisoner, against Lorie Davis, director of
the Texas Department of Criminal Justice, Correctional
Institutions Division, Respondent.
having considered the pleadings and relief sought by
Petitioner, the Court has concluded that the petition should
FACTUAL AND PROCEDURAL HISTORY
November 2010 Petitioner was indicted in Tarrant County,
Texas, Case No. 1210389D, for felony driving while
intoxicated (DWI). (Clerk's R. 2-3, doc. 15-11.) The
indictment also included a habitual-offender notice alleging
prior sequential felony convictions for failure to comply
with sex-offender registration and indecency with a child.
Following a jury trial, the jury found Petitioner guilty,
Petitioner pleaded true to the habitual-offender allegation,
and the court assessed his punishment at thirty years'
confinement. (Id. at 83.) 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 his petition for discretionary
review. (Mem. Op. 18, doc. 15-3; Docket Sheet 1, doc.)
Petitioner also filed two state habeas-corpus applications
challenging his conviction. The first was dismissed because
his direct appeal remained pending. The second was denied
without written order by the Texas Court of Criminal Appeals
on the findings of the trial court. (WR-79, 607-01 & -02,
Writs Recv'd & Clerk's Summ. Sheet, docs. 15-20
through 15-22.) This federal habeas petition followed.
appellate court set out the facts of the case as follows:
One afternoon in August 2010, Fort Worth Police Department
(FWPD) Officer Chris Daniels was patrolling the western part
of Fort Worth. Officer Daniels saw [Petitioner] driving a car
that had an expired registration sticker, so Officer Daniels
conducted a traffic stop. [Petitioner] did not drive too
fast, weave, brake improperly, or run stop signs in the
approximately five to ten seconds that Officer Daniels
watched [Petitioner]'s driving.
When Officer Daniels asked to see [Petitioner]'s
driver's license, [Petitioner] gave Officer Daniels a
credit card. [Petitioner] was coherent, but Officer Daniels
noticed a strong smell of an alcoholic beverage coming from
[Petitioner]'s car or his breath. Officer Daniels also
saw that [Petitioner] had bloodshot and watery eyes and used
“slurred, thick, [and] kind of loud speech.”
Officer Daniels asked [Petitioner] if he had been drinking
alcohol, and [Petitioner] responded that he had not had any
beers since the previous night.[Petitioner] conceded,
however, that he had beers inside his car. When [Petitioner]
got out of the car, Officer Daniels still smelled alcohol on
[Petitioner] performed field sobriety tests. According to
Officer Daniels, [Petitioner] showed six out of six signs of
intoxication on the horizontal-gaze-nystagmus test, four out
of eight signs on the walk-and-turn test, and three out of
four signs on the one-leg-stand test. Officer Daniels
arrested [Petitioner] and placed him in the backseat of the
patrol car. When Officer Daniels searched [Petitioner]'s
car, he found two twenty-four-ounce beer cans in the car that
were mostly empty.
In the patrol car, [Petitioner] was able to take his
handcuffs from behind him and bring them underneath his legs
to the front of his body, at which time he reached his cell
phone and called his wife and his sister. [Petitioner]
volunteered to take a breath test, and Officer Daniels took
him to the Tarrant County Sheriff's Office, where Officer
Daniels gave [Petitioner] a statutory warning about the test.
[Petitioner] blew into a breathalyzer machine two times, and
the machine registered his alcohol concentration at .245 and
.239, each of which is about three times the legal limit.
At trial, Officer Daniels conceded that [Petitioner] was not
“falling down drunk” but explained that he had
based his arrest of [Petitioner] on his performance of the
field sobriety tests; his unsteady balance; his bloodshot,
watery, and heavy eyes; his slurred and loud speech; and the
“strong odor of an alcoholic beverage coming from his
person.” Officer Daniels also stated, among other
facts, that people may have natural nystagmus without
drinking alcohol; that he took seventy-three seconds to
complete the horizontal-gaze-nystagmus test, which should
normally take less time; that taking too long to conduct that
test may induce nystagmus; that [Petitioner] did not have
vertical nystagmus (which would have indicated that
[Petitioner] was “very intoxicated”); that he was
not able to record the statutory breath-test warnings that he
gave to [Petitioner]; and that [Petitioner] was coherent and
retained his fine motor skills during his detention.
(Mem. Op. 2-4, doc. 15-3; A (footnotes omitted).)
claims that he received ineffective assistance of trial
counsel in the following respects:
(1) counsel failed to obtain exculpatory evidence in the form
of medical records;
(2) counsel failed to independently investigate the charges;
(3) counsel allowed inadmissible and/or questionable evidence
to be submitted;
(4) counsel allowed perjured testimony regarding Officer
Daniels's credentials without objection; and
(5) counsel failed to object or move to remove a juror who
“attempted an improper correspondence with a member of
the prosecuting team.”
(Pet. 6, doc. 3; Am. Pet. 1-2, doc. 14.)
RULE 5 STATEMENT
believes that the petition is neither barred by limitations
nor subject to the successive-petition bar but that
Petitioner's fifth claim is unexhausted and procedurally
barred. (Resp't's Answer 5, doc. 16.)
Legal Standard for Granting Habeas-Corpus Relief
§ 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 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. Harrington
v. Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. §
2254(d)(1)-(2). 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.” Richter, 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. The
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). Typically, when the Texas Court of Criminal
Appeals denies relief in a state habeas-corpus application
without written opinion, as in this case, it is an
adjudication on the merits, which is entitled to the
presumption. Singleton v. Johnson, 178 F.3d 381, 384
(5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469,
472 (Tex. Crim. App. 1997). Under these circumstances, 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.
preliminary matter, Respondent asserts that Petitioner's
fifth claim is unexhausted and procedurally barred because it
was not raised in the state courts. (Resp't's Answer
10-13, doc. 16.)
prisoners seeking habeas corpus relief under § 2254 are
required to exhaust all claims in state court before
requesting federal collateral relief. 28 U.S.C. §
2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th
Cir. 1999). The exhaustion requirement is satisfied when the
substance of the federal habeas claim has been fairly
presented to the highest court of the state on direct appeal
or in state post-conviction proceedings. O'Sullivan
v. Boerckel, 526 U.S. 838, 842-48 (1999);
Fisher, 169 F.3d at 302; Carter v. Estelle,
677 F.2d 427, 443 (5th Cir. 1982). The exhaustion requirement
is “not satisfied if the petitioner presents new legal
theories or factual claims in his federal habeas
petition.” Reed v. Stephens, 739 F.3d 753, 780
(5th Cir. 2014) (quoting Anderson v. Johnson, 338
F.3d 382, 386 (5th Cir. 2003)).
Texas, the highest state court for criminal matters is the
Texas Court of Criminal Appeals. Richardson v.
Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985).
Therefore, a Texas prisoner may typically satisfy the
exhaustion requirement by presenting both the factual and
legal substance of a claim to the Texas Court of Criminal
Appeals in either a petition for discretionary review or a
state post-conviction habeas-corpus application. See
Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015); Depuy
v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
raised ineffective-assistance-of-counsel claims in his state
habeas application that sufficiently correspond with his
first four claims raised in this petition, however none of
claims raised in the state application correspond to his
fifth claim. Thus, that claim, raised for the first time in
this federal petition, is unexhausted for purposes of §
2254(b)(1)(A). Under the Texas abuse-of-the-writ doctrine,
however, Petitioner cannot now return to state court for
purposes of exhausting the claim. See Tex. Code
Crim. Proc. Ann. art. 11.07, § 4(a)-(c). The
abuse-of-the-writ doctrine represents an adequate state
procedural bar to federal habeas review. Nobles v.
Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Therefore,
absent a showing of cause and prejudice or a miscarriage of
justice, the claim is unexhausted but procedurally barred
from this Court's review. Edwards v. Carpenter,
529 U.S. 446, 451 (2000); Coleman v. Thompson, 501
U.S. 722, 750 (2000). As such, the following discussion
address only Petitioner's first four claims.
Ineffective Assistance of Counsel
criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. Const. amend.
VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985);
Strickland v. Washington, 466 U.S. 668, 688 (1984).
To establish ineffective assistance of counsel a petitioner
must show (1) that counsel's performance fell below an
objective standard of reasonableness and (2) that but for
counsel's deficient performance the result of the
proceeding would have been different. Strickland,
466 U.S. at 688. Both prongs of the Strickland test
must be met to demonstrate ineffective assistance.
Id. at 687, 697.
applying this test, a court must indulge a strong presumption
that counsel's conduct fell within the wide range of
reasonable professional assistance or sound trial strategy.
Id. at 668, 688-89. Judicial scrutiny of
counsel's performance must be highly deferential and
every effort must be made to eliminate the distorting effects
of hindsight. Id. at 689. Where a petitioner's
ineffective-assistance claims have been reviewed on their
merits and denied by the state courts, federal habeas relief
will be granted only if the state courts' decision was
contrary to or involved an unreasonable application of the
Strickland standard in light of the state-court
record. Richter, 562 U.S. at 100-01 (quoting
Williams v. Taylor,529 U.S. 362, 410 (2000));
Bell v. Cone, 535 U.S. 685, 698-99 (2002). Thus, a
federal court's review of state-court decisions regarding
ineffective assistance of counsel must be ...