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Henderson v. Davis

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

February 28, 2018

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, Haywood Henderson, 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.


         In 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.

         The 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 him.
[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).)

         II. ISSUES

         Petitioner 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.)


         Respondent 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.)


         A. Legal Standard for Granting Habeas-Corpus Relief

         A § 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.

         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. 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)[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).

         B. Procedural Default

         As a 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.)

         State 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)).

         In 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).

         Petitioner 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.

         C. Ineffective Assistance of Counsel

         A 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.

         In 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 ...

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