Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Clark v. Davis

United States District Court, N.D. Texas, Dallas Division

March 5, 2018

DEVARION CLARK, #01982912, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Div., Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.

         Pursuant to 28 U.S.C. § 636(b) and Special Order 3, the petition for writ of habeas corpus under 28 U.S.C. § 2254 was referred to the United States magistrate judge. Upon review of the relevant pleadings and applicable law, and for the reasons that follow, the petition should be DENIED.

         I. BACKGROUND

         In 2015, a Dallas County jury convicted Petitioner of the felony offense of assault-family violence committed after conviction of a previous assault-family violence offence.[1] State v. Clark, No. 05-15-00142-CR, 2016 WL 1733389 (Tex. App.-Dallas, Apr. 28, 2016). After finding true the enhancement paragraphs alleging Petitioner's prior convictions of two felony offenses, the jury imposed a sentence of 25 years' imprisonment. Id. Petitioner's conviction was affirmed on direct appeal, id., and, subsequently, the Texas Court of Criminal Appeals summarily denied state habeas relief without issuing a written order. Ex parte Clark, No. WR-62, 483-02 (Tex. Crim. App. Aug. 10, 2016); Doc. 22-12.[2]

         On October 12, 2016, Petitioner filed this pro se federal petition. He complains the evidence was not legally sufficient to support his conviction and that his offense classification and sentence were improperly enhanced. Doc. 3 at 6. Respondent counters that the first claim is unexhausted and procedurally barred and the second claim lacks merit. Doc. 24. Petitioner filed a reply. Doc. 25.

         II. ANALYSIS

         A. Petitioner's Claim of Insufficient Evidence is Unexhausted and Procedurally Barred.

         Petitioner's insufficiency-of-the-evidence claim is procedurally defaulted and, thus, barred from review on the merits, because he failed to raise it on direct appeal, raising it only in his state habeas application. See Reed v. Thaler, 428 Fed.Appx. 453, 454 (5th Cir. 2011) (per curiam) (when a petitioner raises a sufficiency claim only in his state habeas application, “the Texas Court of Criminal Appeals' denial of his application [is] based on an independent and adequate Texas procedural ground such that his sufficiency claim is procedurally defaulted”). Petitioner's reference to filing a “supplemental brief” in the trial court on June 16, 2016, in which he challenged the sufficiency of the evidence, Doc. 25 at 1, [3] is of no moment. Even if the pleading could be considered to raise the insufficiency issue, it was untimely filed - some 45 days after Petitioner's conviction had already been affirmed on direct appeal. Doc. 25 at 12-13.

         Petitioner also has not met his burden to demonstrate cause for the default and actual prejudice or that a fundamental miscarriage of justice would occur if the Court were to refuse to consider his claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Martinez v. Ryan, 566 U.S. 1, 13 (2012) (“only where a prisoner is impeded or obstructed in complying with the State's established procedures will a federal habeas court excuse the prisoner from the usual sanction of default”). In his reply, Petitioner generally mentions the phrase “cause and prejudice, ” and instead focuses his argument on the merits of his insufficiency-of-the-evidence claim. Doc. 25 at 2. Consequently, Petitioner's sufficiency claim is procedurally barred from federal habeas review.

         B. Petitioner's Remaining Claims Lack Merit

         Petitioner is not entitled to habeas corpus relief unless the state court's adjudication on the merits:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.