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Garfias v. Davis

United States District Court, N.D. Texas, Fort Worth Division

March 23, 2018

CHRIS GARFIAS, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          REED O'CONNOR, UNITED STATES DISTRICT JUDGE.

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Chris Garfias, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         In May 2006 Petitioner was indicted in Tarrant County, Texas, No. 1014128D, on charges of aggravated robbery with a deadly weapon (count one) and aggravated assault with a deadly weapon (count two). State Writ 97-98, ECF No. 15-79. Both offenses were alleged to have been perpetrated upon Shahid Shahid on May 1, 2006. The indictment also contained a repeat-offender notice alleging a prior 1999 felony conviction for retaliation in Dallas County. The Second District Court of Appeals of Texas summarized the factual background of the case as follows:

Just after midnight on March 1, 2006, [Petitioner] and Robbie Fernandez entered a 24-hour Conoco gas station store in Hurst. The couple planned to burglarize the store, and although they did not ultimately take anything from the store, [Petitioner] shot the clerk, [Shahid], four times, critically injuring him.
. . .
Shahid typically locked the gas station at midnight, but he allowed [Petitioner] and Fernandez to enter after midnight on March 1, 2006, because he knew Fernandez. Fernandez and [Petitioner] ate food they had brought with them, and Shahid worked in another area of the store. At some point, Shahid heard a gunshot and breaking glass. When he went to investigate, he saw [Petitioner] and Fernandez outside the store and noticed that [Petitioner] had a gun. The pair reentered the store, and Fernandez, who was crying, tried to hide behind Shahid. Shahid asked [Petitioner] not to shoot, but [Petitioner] shot Shahid four times at close range. Shahid failed to identify [Petitioner] in the courtroom, and he did not think anything had been stolen from the store.
A forensic video analyst testified that he had analyzed the gas station's time lapse surveillance video showing the shooting. The analyst did not observe the shooter steal anything from the store and could not make a positive identification of the gunman.
Officer Jacob Eubanks responded to the scene after the shooting and found Fernandez and Shahid, but not [Petitioner]. Officer Eubanks testified that Fernandez told him her friend had been shot, and that she later gave “conflicting stories.” The officer also stated that Shahid did not complain about being robbed and the register was not open, but [Petitioner] had taken Fernandez's Honda CRV SUV from the parking lot.
Officer Lawrence Marx, the crime scene officer, photographed the scene and did not notice money or anything else lying around the store. He found a fired bullet in the store that appeared to be a smaller caliber than a .45 caliber.
Detective Jeffrey Caudle testified that he interviewed Fernandez, and she implicated [Petitioner]. He agreed with Officer Eubanks that Fernandez gave conflicting stories, saying at first that she did not know [Petitioner], and later admitting that she knew him, that they had had a relationship, and that she came to the store with him. Detective Caudle created a photo spread with [Petitioner]'s photo, and Fernandez identified [Petitioner] as the man who shot Shahid. Fernandez also identified [Petitioner] on a still photo from the surveillance video. Detective Caudle also showed a photo spread to Shahid, and Shahid identified [Petitioner] as the man who shot him, although [Petitioner] challenged Shahid's identification. Detective Caudle also testified that to his knowledge nothing had been taken from the store.
Detective Chad Woodside testified to physical evidence that was found on or with [Petitioner] at the time of his arrest. Specifically, Detective Woodside obtained clothing that, based on the surveillance video, appeared to be the clothing worn by the shooter, a handgun case and magazine, .38 and .45 caliber ammunition (some spent and some unspent), and keys to Fernandez's Honda CRV. Detective Woodside also noted some discrepancies in Fernandez's story. Despite Fernandez's and [Petitioner]'s conflicting stories implicating each other, Detective Woodside pursued [Petitioner] because he was clearly the shooter.
Further, [Petitioner] gave a videotaped statement confessing to the shooting. In the statement, [Petitioner] admitted that he went to the store with Fernandez to “rob” it, although he claimed that the crime was all Fernandez's idea. [Petitioner] also asserted that at one point he wanted to leave the store and not complete the robbery, but Fernandez refused to leave. [Petitioner]'s counsel admitted in opening statement that [Petitioner] “had a weapon, he used it, and that there were shots fired.” Finally, [Petitioner]'s mother testified that Fernandez was [Petitioner]'s girlfriend and had picked [Petitioner] up on the night of the offenses. [Petitioner]'s defense at trial was, first, that although he fired shots, he did not commit aggravated robbery because he did not take anything from the store. Further, with regard to the aggravated assault charge, [Petitioner] argued that Fernandez's conflicting stories and Shahid's condition during the hospital identification and failure to identify [Petitioner] in the courtroom created reasonable doubt.
. . .
Following a two-day trial, the jury convicted [Petitioner] of aggravated robbery with a deadly weapon and aggravated assault with a deadly weapon. After hearing additional evidence and argument, the jury assessed punishment at sixty years' confinement for the aggravated robbery, and life and a ten thousand dollar fine for the aggravated assault. The trial court sentenced [Petitioner] in accordance with the jury's verdict and ordered the sentences to run concurrently.

Id. at 113-14, 121-24 (footnotes omitted).

         The court of appeals affirmed the trial court's judgment, but the Texas Court of Criminal Appeals vacated the appellate court's judgment and remanded the case for further consideration of Petitioner's double-jeopardy claim. Id. at 125, 130. Upon its second review, the court of appeals affirmed Petitioner's conviction for aggravated assault with a deadly weapon but vacated his conviction for aggravated robbery with a deadly weapon as violative of double jeopardy. Id. at 165. The Texas Court of Criminal Appeals disagreed and reversed the appellate court's judgment and reinstated Petitioner's conviction for aggravated robbery with a deadly weapon. Id. at 183. The United States Supreme Court subsequently denied Petitioner's petition for writ of certiorari. Garfias v. State, 135 S.Ct. 359 (2014). Petitioner also filed a state habeas-corpus application challenging his convictions, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. Id. at 2-19; Action Taken, ECF No. 15-78. This federal petition for habeas-corpus relief challenging his convictions followed.

         II. ISSUES

         Petitioner raises five grounds for relief:

(1) He was subjected to double jeopardy;
(2) The cumulative and individual effect of the prosecutor's misconduct violated his right to due process;
(3) The cumulative and individual effect of trial counsel's deficient performance prejudiced him;
(4) He was denied effective assistance of appellate counsel; and
(5) Appellate counsel failed to appeal the denial of the defense's requests for accomplice-witness and law-of-parties instructions.

Pet. 6-7a, ECF No. 1.

         III. RULE 5 STATEMENT

         Respondent believes that Petitioner has sufficiently exhausted his state-court remedies as required by § 2254(b) and (c) and that the petition is neither barred by the statute of limitations nor successive. Resp't's Ans. 7, ECF No. 18.

         IV. DISCUSSION

         A. Legal Standard for Granting Habeas-Corpus Relief

         A § 2254 habeas petition is governed by the heightened standard of review provided for in the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established federal law as established by the United States Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet and “stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102.

         The statute further requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. A petitioner has the burden of rebutting the presumption of correctness by clear-and-convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000).

         Finally, when the Texas Court of Criminal Appeals denies relief in a state habeas-corpus application without written order, as in this case, it is an adjudication on the merits, which is also entitled to the presumption of correctness. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Under these circumstances, a federal court may assume the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied. Townsend v. Sain, 372 U.S. 293, 314 (1963)[1]; Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997).

         B. Double Jeopardy

         Under his first ground, Petitioner claims that his convictions for aggravated assault and aggravated robbery stemming from the same transaction constitutes double jeopardy and that he was twice convicted for the same or lesser-included offense. Pet. 6, ECF No. 1. The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). This case involves a multiple-punishments issue. Generally, the test to be applied to determine whether there are two offenses or only one was set forth by the United States Supreme Court as follows:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.... A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v. Marden, 872 F.2d 123, 126 (5th Cir. 1989).

         In a lengthy discussion, the Texas Court of Criminal Appeals addressed the issue in its February 26, 2014, opinion as follows:

         BACKGROUND

         Garfias was indicted for aggravated robbery by threat, a first-degree felony, and for aggravated assault causing bodily injury, a second-degree felony. The indictment read as follows:

CHRISTOPHER GARFIAS, . . . on or about the 1st day of March 2006, did
THEN AND THERE INTENTIONALLY OR KNOWINGLY, WHILE IN THE COURSE OF COMMITTING THEFT OF PROPERTY AND WITH INTENT TO OBTAIN OR MAINTAIN CONTROL OF SAID PROPERTY, THREATEN OR PLACE SHAHID SHAHID IN FEAR OF IMMINENT BODILY INJURY OR DEATH, AND THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON, TO-WIT: A FIREARM,
COUNT TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT . . . DID INTENTIONALLY OR KNOWINGLY CAUSE BODILY INJURY TO SHAHID SHAHID BY SHOOTING HIM WITH A FIREARM AND THE DEFENDANT DID USE OR EXHIBIT A DEADLY WEAPON DURING THE COMMISSION OF THE ASSAULT, TO-WIT: A FIREARM[.]
. . .
Garfias did not argue either before or during trial that the Double Jeopardy Clause was implicated by the multiple offenses for which he had been charged. He raised this argument for the first time on appeal, alleging multiple punishments had been imposed upon him for the same offense. In addressing this claim, the court of appeals employed the “same elements test” established in Blockburger v. United States. The court determined that because aggravated robbery and aggravated assault, as charged in the indictment, each required proof of at least one element that the other did not, a double-jeopardy violation was not apparent on the face of the record and thus Garfias had not preserved his complaint on appeal.
This Court granted Garfias's petition for discretionary review, vacated the court of appeals' judgment, and remanded the appeal. We indicated that while the court of appeals had conducted a proper Blockburger analysis, the question of whether multiple punishments violated double jeopardy did not end there. An accused may be punished for two offenses even though they would be regarded as the same under a Blockburger analysis if the Legislature had otherwise made clear its intention that he should be. We remanded the case to the court of appeals for that court to examine other indicia of legislative intent.
On remand, the court of appeals examined the similarity between aggravated assault and aggravated robbery under the Texas Penal Code. The court stated that because of the similarity between how these offenses could have been charged under the evidence of this case, the Legislature could not have intended for the offenses to be punished multiply. Despite finding that aggravated robbery by threat and aggravated assault causing bodily injury are two separate offenses with different underlying gravamina, the court of appeals ultimately concluded that the Legislature could not have intended to allow multiple punishments in this case. Based on this holding, the court vacated Garfias's conviction for aggravated robbery and affirmed his conviction for aggravated assault. This Court granted review to determine whether the court of appeals erred in considering how the offenses could have been charged in making a double jeopardy determination, and whether, in the alternative, the facts of this case present two discrete events that do not implicate the Double Jeopardy Clause in the first instance.
ANALYSIS
Garfias failed to raise his double jeopardy claim to the trial court. However, such a claim may be raised for the first time on appeal when (1) the undisputed facts show the double-jeopardy violation is clearly apparent from the face of the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state interest. We must therefore first determine whether the undisputed facts show that a double jeopardy violation is clearly apparent in this case.
There are three types of double jeopardy claims: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. A multiple-punishments violation can arise either in the context of lesser-included offenses, where the same conduct is punished under a greater and a lesser-included offense, and when the same conduct is punished under two distinct statutes where the Legislature only intended for the conduct to be punished once. Garfias asserts that the latter has occurred in this case.
The Legislature has the power to establish and define crimes and few, if any, limitations are imposed upon this power by the Double Jeopardy Clause. Thus the true inquiry in a multiple-punishments case is whether the Legislature intended to authorize the separate punishments. There are two ways in which legislative intent can be ascertained: by analyzing the elements of the offenses in question, or by identifying the appropriate “unit of prosecution” for the offenses. This Court has held that an “elements” analysis is appropriate when the offenses in question come from different statutory sections, while a “units” analysis is employed when the offenses are alternative means of committing the same statutory offense. In this case, Garfias complains of convictions stemming from different statutory sections, so we must embark on an “elements” analysis to determine whether multiple-punishments principles have been violated.
The starting point of an “elements” analysis in the multiple-punishments context is the Blockburger test, used to determine whether each of the offenses requires proof of an element that the other does not. In doing so, courts must focus on the elements alleged in the charging instrument-not on the offense as defined in the Penal Code. Under this so-called cognate-pleadings approach, double-jeopardy challenges can be made even against ...

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