Speed v. Davis

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

         The District Court has referred Petitioner's objections (ECF No. 19) to the Magistrate Judge for a recommendation as to whether the objections should be overruled or sustained. The findings, conclusions and recommendation of the Magistrate Judge follows:

         I.

         Petitioner filed objections to the Magistrate Judge's January 8, 2018, Findings, Conclusions, and Recommendation, which recommended that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. For the foregoing reasons, the objections should be overruled.

         1. Evidentiary Hearing

         Petitioner first objects that the state court's decision to deny relief was not entitled to deference under 28 U.S.C. § 2254 because the state court failed to provide a live evidentiary hearing and instead relied on affidavits.

         Contrary to Petitioner's assertion, the presumption of correctness applies “even if the hearing was a ‘paper' hearing and may not have been full and fair.” Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004); see also Carter v. Johnson, 131 F.3d 452, 460 n. 13 (5th Cir. 1997) (“We have consistently recognized that, to be entitled to the presumption of correctness, a state court need not hold an evidentiary hearing; to the contrary, findings of fact based exclusively on affidavits are generally sufficient to warrant the presumption.”). Petitioner's objection should be OVERRULED.

         2. Juror Thomas Smith

         Petitioner next objects the state court's finding that juror Thomas Smith was not biased against him should not be accorded deference because Smith's in-court statements differed from his affidavit. The record shows that during voir dire, Juror Smith informed the parties and the court that he attended the same high school as Petitioner in 1983. When asked if he remembered Petitioner, Smith stated: “I don't - I just remember the person a little bit, but it's just as an acquaintance, not someone I ran with or anything.” (ECF No. 12-11 at 281.) Smith stated he could be a fair and impartial juror. (Id.)

         In his affidavit, Smith stated:

I don't remember Mr. Speed from high school and harbor no ill will toward him and his brother. His statements about me having a violent fight with his brother are completely false - I have no hatred for blacks in general. My decision on this case was based purely on the evidence shown to me in the courtroom.

(ECF No. 13-11 at 51.) Although Petitioner has identified a variance between Smith's statement during voir dire that he knew Petitioner “a little bit” because the two attended high school together years before trial and Smith's statement in his affidavit that he did not remember Petitioner, Petitioner has failed to establish any bias or prejudice by the juror. Petitioner has failed to show that the state court's denial of this claim was unreasonable, and his objection should be OVERRULED.

         3.Deadly Weapon

         Petitioner further objects that the evidence was insufficient to support the deadly weapon finding. He states he should not have been convicted under the law of parties because he did not know that his ...