United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.
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
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. 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.
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.
Petitioner's Claim of Insufficient Evidence is
Unexhausted and Procedurally Barred.
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,
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.
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.
Petitioner's Remaining Claims Lack Merit
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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented