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Wardrip v. Davis

United States District Court, N.D. Texas, Wichita Falls Division

March 29, 2018

FARYION EDWARD WARDRIP, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional Institutions Division, Respondent.

ORDER OVERRULING OBJECTIONS AND ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION AS AMENDED

          A. JOE FISH SENIOR UNITED STATES DISTRICT JUDGE

         Before the court are the Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Recommendation, " doc. 190) and the objections of both parties to the Recommendation (docs 193, 194). After making an independent review of the pleadings, files and records in this case, the objections are OVERRULED, the Recommendation is AMENDED as set out in this order and, as amended, the Recommendation is ADOPTED as the findings and conclusions of the court, and conditional habeas relief is GRANTED in accordance with the Recommendation.

         I

         In light of the objections by both parties and this Court's own review, the Recommendation is amended to address certain objections, clarify a finding regarding prejudice, and clarify the scope of review on remand.

         A. Scope of Review

         Petitioner objects that the Recommendation does not consider the claims that were not presented to this Court or to the court of appeals because those claims are beyond the scope of the remand. (Petitioner's Objections at 4 (citing Recommendation at 3).) Respondent objects that the Recommendation exceeds the scope of the remand by considering whether the state court decision was based on an unreasonable determination of the facts. (Respondent's Objections at 25-26.) Therefore, this Court clarifies the scope of the remand and confirms that the analysis of the Recommendation was proper.

         The United States Court of Appeals for the Fifth Circuit has long held that, "[t]he mandate rule requires a district court on remand to effect our mandate and to do nothing else." Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007) (quoting United States v. Castillo, 179 F.3d 321, 329 (5th Cir. 1999) (citing United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998)). On remand, the district court "must implement both the letter and the spirit of the appellate court's mandate and may not disregard the explicit directives of that court." Id. (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (quoting Becerra, 155 F.3d at 753)), Because the mandate rule is a corollary of the law of the case doctrine, it "compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court." Id. (quoting Castillo, 179 F.3d at 329 (internal citation omitted)).

         In this case, the Court of Appeals vacated this Court's prior judgment and remanded in an order stating as follows: "We VACATE the April 9, 2010 judgment of the district court and REMAND for reconsideration in light of the Supreme Court's decision m Cullen v. Pinholster, [563 U.S. 170], 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Wardrip v. Thaler, 428 Fed.App'x 352 (5th Cir. 2011). While the remand order did not specify which issues to consider, it is clear that this Court was to "reconsider" its prior decision to grant relief in light of Pinholster.

         Since the new claims raised after the remand were not any part of this Court's prior decision to grant relief, they could not be "reconsidered" in light of Pinholster. In United States v. Bowerman, 131 Fed.Appx. 992, 993 (5th Cir. 2005), the court of appeals found that the district court exceeded the scope of a remand order by permitting the Government to introduce new witness testimony at a subsequent resentencing hearing. In again vacating the district court's judgment, the court of appeals noted that "[a]s a corollary to the law of the case doctrine, the mandate rule provides that the district court comply on remand with the appellate court's mandate by addressing 'only those discrete, particular issues identified by the appeals court for remand.'" Id. at 993 (quoting United States v. Lee, 358 F.3d 315, 320-21 (5th Cir. 2004). Similarly, in United States v. Magallanes, 301 F.3d 1267, 1270 (10th Cir. 2002), the United States Court of Appeals for the Tenth Circuit held that a district court exceeded the scope of a remand of a habeas proceeding under 28 U.S.C. § 2255 when it addressed the merits of a new claim of ineffective assistance of counsel that was not before the court of appeals prior to the remand. While not condemning the district court for attempting to resolve all issues, the court of appeals found that new claims could not be considered on remand because they were not fairly presented in the original habeas motion, and to allow such new claims would undermine the limitation on second or successive petitions. Id. Therefore, the Recommendation properly declined to consider Wardrip's new claims.

         However, the Recommendation also properly reconsidered the claim before it. The remand order did not limit this Court's consideration only to 28 U.S.C. § 2254(d) (1), and the Magistrate Judge's conclusion that the state court adjudication of the same claim was based on an unreasonable determination of fact under § 2254(d) (2) was properly limited to the record that was before that state court. (Recommendation at 11-18.) The remand order required this Court to reconsider its grant of relief in light of Pinholster, and the Magistrate judge properly considered the limitation of Pinholster and restricted its review under § 2254(d) to the record that was before the state court.

         Since the threshold limitation of § 2254(d) was satisfied, the Magistrate Judge then appropriately proceeded to determine whether relief was warranted based on the evidence properly before the federal court. See Panetti v. Quarterman, 551 U.S. 930, 953-954 (2007); Smith v. Cain, 708 F.3d 628, 635 (5th Cir. 2013); Wiley v. Epps, 625 F.3d 199, 207 (5th Cir. 2010). Therefore, the Recommendation properly considered this claim under the remand order.

         B. Strickland Analysis

         Respondent objects to the analysis of the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), in the Recommendation, complaining that the evidence is insufficient to show prejudice in answering the mitigation special issue by re weighing the evidence in aggravation against the totality of the available mitigating evidence that could have been presented. (Respondent's Objections at 8.) While a good prison record might not outweigh the multiple crimes described by Respondent in answering the mitigation special issue, the Recommendation also found that prejudice was shown in considering whether the jury would have found that the prosecution had proven that Wardrip would be a future danger in prison, a different special issue.

         As the Supreme Court observed in Buck v. Davis, 137 S.Ct. 759, 776 (2017), the showing of future ...


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