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