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McClelland v. Davis

United States District Court, W.D. Texas, Austin Division

March 23, 2018

ANTHONY WAYNE McCLELLAND
v.
LORIE DAVIS

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          MARK LANE, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1) and Respondent's Answer (Document 9). Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be denied.

         STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         According to Respondent, the Director has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 403rd Judicial District Court of Travis County, Texas, in cause number D-1-DC-15-900001. Petitioner was charged by indictment with aggravated assault with a deadly weapon. On December 3, 2015, a jury found Petitioner guilty as charged. Petitioner was sentenced to six years in prison.

         The Eighth Court of Appeals affirmed his conviction on February 28, 2017. McClelland v. State, No. 08-16-00016-CR, 2017 WL 769884 (Tex. App. - El Paso 2017, no pet.). Petitioner did not file a petition for discretionary review. He did, however, file a state application for habeas corpus relief. The Court of Criminal Appeals denied the application without written order on October 25, 2017. Ex parte McClelland, No. 87, 499-01.

         B. Factual Background

         The factual background of this case is found in the Court of Appeals opinion and is repeated below.

On July 13, 2014, Pran Pun-Magar (Pran) and Chinta Ram Oli (Chinta) took a break from their job at a Shell gas station located in East Austin. They walked to a nearby park where they sat under a tree. Appellant approached them, grabbed the front of Chinta's shirt, brandished a knife, and pointed it at both of them. Appellant also verbally threatened the two men. Chinta and Pran had recently immigrated from Nepal to Texas and did not understand English, and only understood Appellant when he said, “f***ing Nepali.” Both men were afraid Appellant intended to kill them. When Chinta and Pran tried to walk back to the gas station, Appellant approached them again, took his shirt off, and hit Chinta on the chest and kicked Pran.
Because Chinta and Pran just arrived to the United States, they were unfamiliar with the laws and regulations and were unsure of what to do after Appellant approached them in the park. With the help of a Nepalese interpreter and their immigration attorney, Chinta and Pran were able to call the police and report the assault.
On July 18, 2014, a second incident occurred. According to Chinta, who was already inside the gas station, Appellant chased Pran as he was arriving for work. Once Pran made it inside the gas station, they observed Appellant making threatening gestures, including making a gun with his hand, pretending to pull the trigger, and making a slashing motion across his neck as if his finger were a knife. Pran immediately called the police. Officers Ricardo Aguilar-Lopez and Jason Looker responded to the scene. Pran and Chinta noticed Appellant crossing a nearby street and pointed him out to the officers. The officers stopped Appellant to confirm his identity and Appellant informed them that he had been involved in an argument with Chinta and Pran earlier in the week. Chinta and Pran had approached him near the park while he was barbecuing and that while he could not understand what they were saying, he felt like he was being either harassed or that they were making sexual advances towards him based on their demeanor. During this conversation, Appellant was outside the patrol vehicle, not handcuffed, and had not yet been placed under arrest. The officers and Appellant, who voluntarily sat in the back of the patrol vehicle, then drove to the gas station where Chinta and Pran confirmed that he was the individual who had tried to assault them. Officer Aguilar-Lopez testified that when Appellant was in the back of the patrol vehicle he was detained, but he had not yet been read his Miranda warning.
During a voir dire examination of Officer Aguilar-Lopez outside the presence of the jury, the State attempted to introduce the statements Appellant made regarding the first encounter with as voluntary and noncustodial. The trial court was unsure when the officers detained Appellant, and Officer Aguilar-Lopez testified that upon the immediate encounter, Appellant was not free to leave. The trial court then reviewed the video from the patrol vehicle, which revealed that when the officers questioned Appellant regarding the first incident, Appellant responded that the two men harassed him. The trial court ruled that these statements were not voluntary because they were made in response to the officers' questions and determined that they would not be admissible at trial. The State similarly sought to introduce another statement made by Appellant while he was sitting alone in the patrol car. FN1 FN1 Appellant suddenly yelled out, “Hey, that's him, that's both of them right there.” Contrary to its earlier ruling, the trial court ruled that this statement was voluntary and thus admissible:
[Trial Court]: The part that I just saw a few minutes is going to be admitted as res gestae, voluntary. Him blurting out the ...

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