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Canfield v. Davis

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

March 28, 2018

JERRY LEE CANFIELD, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          TERRY R. MEANS UNITED STATES DISTRICT JUDGE.

         Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Jerry Lee Canfield, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. Factual and Procedural History

         On April 3, 2013, in the 213th Judicial District Court, Tarrant County, Texas, No. 1317398R, a jury found Petitioner guilty of continuous sexual abuse of a child under 14 years of age and assessed his punishment at 50 years' confinement. (State Writ 92, doc. 18-13.) His conviction was affirmed by the Seventh District Court of Appeals of Texas. (Docket Sheet 2, doc. 18-1.) Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals, but he did file a state habeas-corpus application raising the claims presented in this federal petition, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (Action Taken, doc. 18-14.)

         The Seventh District Court of Appeals set forth the following background of the case (any spelling, punctuation, and/or grammatical errors are in the original):

[Petitioner] was charged by indictment of intentionally or knowingly committing two or more acts of sexual abuse of M.C., a child younger than 14 years of age, during the period from May 1, 2010 through August 31, 2010. Specifically, the indictment alleged [Petitioner] committed aggravated sexual assault of M.C. “by causing the sexual organ of [M.C.] to contact the mouth of the defendant, and/or by causing the sexual organ of [M.C.] to contact the sexual organ of the defendant, and/or by causing the anus of [M.C.] to contact the sexual organ of the defendant.” The indictment went on to allege [Petitioner] also committed the offense of indecency with a child with intent to arouse or gratify the sexual desire of any person “by touching the genital of [M.C.] and/or by causing [M.C.] to touch the genitals of the defendant, and/or by touching the anus of [M.C.].” The indictment further alleged the statutory requirement that “at the time of the commission of each of these acts of sexual abuse the defendant was 17 years of age or older and [M.C.] was younger than 14 years of age.”
On December 3, 2012, the State filed five separate notices, entitled Notice of Outcry Pursuant to Article 38.072 CCP, each naming one of the following witnesses: Ronda Canfield, Jessica Canfield, Michael Canfield, Lindsey Dula, and Beth Hobbs. Each notice gave a summary of their proposed testimony concerning statements made by M.C. In April 2013, a jury trial was held during which, among others, each of the following witnesses testified: (1) Ronda Canfield (M.C.'s great aunt), (2) Jessica Canfield (Ronda's daughter), (3) Michael Canfield (M.C.'s great uncle), and (4) Lindsey Dula (a forensic examiner who interviewed M.C.).
At trial, Jessica was the first to testify. She testified that, in January 2012, while she, M.C. and Jessica were in the kitchen at the Canfield's home in Bedford, Texas, M.C. told her that [Petitioner] had touched her private parts. Jessica further testified that in a conversation that took place the next day, M.C. told her [Petitioner] had touched her private parts with his hands, mouth, and private part and that M.C. stated she “had to touch [Petitioner]'s] private parts with [her] hands and [her] body.” During her testimony, [Petitioner]'s counsel never objected to the testimony concerning M.C.'s statements to her.
Ronda was the next witness to testify. During her direct examination, she too testified concerning the conversation that took place in the kitchen of her home. Ronda testified that during that conversation M.C. told her [Petitioner] touched her private parts. She also stated that M.C. told her it happened when she was in the downstairs bedroom in Bedford and that it also happened in a room in Tennessee. Ronda testified that, at that point, she asked her husband to come into the kitchen and she asked M.C. to tell him what she had just told her. When Michael and M.C. began to talk, she and Jessica left the room to take care of M.C's brother. During Ronda's testimony, [Petitioner]'s counsel never objected to the testimony concerning M.C.'s statements to her.
Michael was the third witness. During both direct and cross-examination, Michael testified that, in January 2012, M.C. told him her father kissed her private parts and touched his private parts to her private parts. As with Jessica and Ronda, during Michael's testimony before the jury, [Petitioner]'s counsel never objected to any testimony concerning M.C.'s statements to him.
After a Bedford Police Department detective testified, the State called Lindsey Dula, the director of program services at Alliance for Children. Lindsey, a child abuse forensic examiner, interviewed M.C. concerning the allegations of abuse she had disclosed to Jessica, Ronda, and Michael. Lindsey described M.C.'s statements to those witnesses as a “rolling outcry.” She testified M.C. told her that [Petitioner] touched her private parts and put his private part into her private part more than once. She also testified that M.C. told her these incidents occurred in an apartment in Tennessee and at Aunt Ronda's house. According to Lindsey's testimony, M.C. also demonstrated the position she would be in when [Petitioner] would enter her anus and that M.C. indicated she and [Petitioner] had vaginal and anal sex multiple times. M.C. also indicated to Lindsey that when [Petitioner] put his mouth on her vagina, he would penetrate her vagina with his tongue. M.C. also told Lindsey [Petitioner] would show her adult sexual organs on his computer.
Prior to this testimony being given, in an article 38.072 hearing conducted outside the presence of the jury, [Petitioner] made the following objection concerning M.C.'s statements to Lindsey:
My understanding of the outcry statements given by Ms. Dula are duplicative of the outcry statements that have already been elicited from Jessica and from Ronda and also the statements given by Mike, so we would object.
The trial court overruled the objection.
Araceli Desmarais, a Sexual Assault Nurse Examiner, was the next witness. She testified M.C. told her that [Petitioner] touched her private part with his private part. M.C. indicated that, when this took place, she was not wearing her pants or underwear and [Petitioner] had removed his pants and boxers. According to M.C.'s statement, this type of encounter occurred multiple times in Tennessee and in Bedford. M.C. also indicated that her father showed her adult sexual organs on his computer. She told Araceli that [Petitioner] performed oral sex on her and made her touch his private parts more than once at the Canfield home in Bedford. M.C. also indicated there was pain when [Petitioner] penetrated her private part. [Petitioner]'s counsel did not object to Araceli's testimony.
M.C. was the State's final witness. M.C. testified her father touched her private parts when they lived in Tennessee and that he also touched his private part to her private part when she was living in Bedford. She testified that when he touched her with his private part, sometimes she was on her stomach and other times on her back. She did not have any panties on and her father was not wearing any pants or underwear. She indicated that when her father was on top of her and she was on her tummy, it hurt. She also indicated her father made noises and something came out of his private part.
Following M.C.'s testimony, the State rested. The defense then rested without calling any additional witnesses.

(Mem. Op. 2-6, doc. 18-10 (footnotes omitted).)

         II. Issues

         Petitioner raises six grounds for relief:

(1) The trial court lacked jurisdiction because “the jury [was allowed] to use extraneous offenses in another state, namely Tennessee, to prove the allegations as alleged in Bedford[], Texas” (ground one);
(2) He received ineffective assistance of trial and appellate counsel (grounds two through five); and
(3) He is actually innocent of the offense for which he was convicted (ground six).

(Pet. 6-7(f), doc. 1.)

         III. RULE 5 STATEMENT

         Respondent believes that Petitioner's state-court remedies have been exhausted as to the claims raised and that the petition is neither time-barred nor successive. (Resp't's Answer 6, doc. 16.)

         IV. LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF

         A § 2254 habeas petition is governed by the heightened standard of review provided for in the AEDPA. See 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. See 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet but “stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102.

         Additionally, the statute 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). Additionally, when the Texas Court of Criminal Appeals denies relief on a state habeas-corpus application without written order, typically it is an adjudication on the merits, which is likewise entitled to this presumption. Richter, 562 U.S. at 100; Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court may assume that 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); Schartzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997).

         V. Discussion

         1. Extraneous-Offense Evidence

         Under his first ground, Petitioner challenges the trial court's jurisdiction on the basis that “[r]egardless of a limited instruction to the jury, the evidence at trial shows that the State used the Tennessee extraneous offenses to prove the 30-day duration element of the indictment.” (Pet. 6-6(a), doc. 1.) According to Petitioner, of the approximately seventeen occurrences of sexual abuse used by the state to prove up the indictment, only three occurred in Bedford, Texas. (Id.) Thus, he argues that the trial court lacked jurisdiction as “there is no fedral [sic] or state law that allows for out-of-state extrensous [sic] offenses to prove beyond a reasonable doubt the allegations alleged in Bedford, Texas (Tarrant County), as presented in their indictment.” (Id. at 6(b).)

         The jury was charged as follows regarding their use of extraneous offense evidence:

You are instructed that if there is any testimony before you in the case regarding the Defendant having committed offenses other than the offense alleged against him in the Indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offenses, if any, were committed. And even then you may only consider the same in determining motive, intent, opportunity, preparation, knowledge or absence of mistake or accident of the Defendant in connection with the offense, if any alleged against him in the Indictment in this case and for no other purpose.

(Clerk's R. 96, doc. 18-2 (emphasis added).)

         The state habeas court found that the jury charge “instructed the jury that they must find, beyond a reasonable doubt, that the offense occurred in Tarrant County” and “limited the jury's consideration of the extraneous offense evidence to motive, intent, opportunity, preparation, knowledge, and absence of mistake or accident” and was thus admissible under Texas Rule of Evidence 404(b)(2). (State Writ 71, doc. 71.) Based on its findings, the court concluded that the jury charge properly limited the jury's consideration of extraneous offenses. (Id. at 80.)

         Although couched as a “jurisdictional” issue, this claim, can more accurately be said to raise an evidentiary matter. A federal habeas court will disturb state-court evidentiary rulings on habeas review only if they render the trial fundamentally unfair in violation of due process. Payne v. Tennessee, 501 U.S. 808, 825 (1991); Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993); Scott v. Maggio, 695 F.2d 916, 922 (5th Cir. 1983). Absent evidence to the contrary, a jury is presumed to follow the instructions set forth in the trial court's charge. United States v. Morrow, 177 F.3d 272, 290 (5th Cir. 1999). Petitioner has not rebutted this presumption. Therefore, the limiting instruction effectively cured any risk of spillover prejudice.

         Furthermore, notwithstanding Texas's normal rules of evidence, evidence of extraneous offenses or acts committed by a defendant against the child victim is admissible in a trial where the defendant is accused of the sexual assault of a child under seventeen where it is relevant (1) to the state of mind of the defendant and the child and (2) the previous and subsequent relationship between the two. See Tex. Code. Crim. Proc. Ann. art. 38.37 (West Supp. 2017). Therefore, extraneous-offense evidence is more often more readily admitted in cases involving sexual assaults of children. Kessler v. Dretke, 137 Fed. App'x 710, 2005 WL 1515483, at *1 (5th Cir. June 28, 2005), cert. denied, 546 U.S. 1105 (2006). The admission of such evidence does not render a petitioner's trial fundamentally unfair if the state “makes a strong showing that the defendant committed the offense and if the extraneous offense is rationally connected with the offense charged.” Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007). The evidence of Petitioner's sexual abuse of M.C. in Tennessee was properly admitted because it bears a rational relationship to the charged offense. Moreover, there is no evidence that admission of the extraneous offense evidence rendered the entire trial fundamentally unfair or that but for the admission of the evidence the result of Petitioner's trial would have been different. Brecht v. Abrahamsom, 507 U.S. 619, 637 (1993). Petitioner is not entitled to relief under his first ground.

         2. Ineffective Assistance of Counsel

         Under grounds two, four, and five, Petitioner claims that he received ineffective assistance of trial counsel, and, under ground three, he claims that he received ineffective assistance of counsel on appeal. A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on the first appeal as of right. U.S. Const. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697. In applying this test, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.

         The Supreme Court set out in Harrington v. Richter the manner in which a federal court is to consider an ineffective-assistance- of-counsel claim raised in a ...


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