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Murff v. Davis

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

April 4, 2018

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Santonio Demon Murff, 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

         On December 20, 1996, in the 371st District Court, Tarrant County, Texas, a jury found Petitioner guilty of capital murder, and, the state having waived the death penalty, the trial court assessed a mandatory life sentence. Tr. 195, ECF No. 14-4. Petitioner appealed his conviction, but the Second District Court of Appeals of Texas affirmed the trial court's judgment. Docket Sheet 2, ECF No. 14-2. Thereafter, Petitioner filed three state habeas-corpus applications. The first, filed in July 2004, was dismissed for noncompliance with the state's form requirements on August 25, 2004. SH01 Writ Action Taken & 2, ECF No. 14-19. The second, filed in September 2004, was granted in part, allowing Petitioner to file an out-of-time petition for discretionary review, which the Texas Court of Criminal Appeals refused on September 10, 2008. SH03 Writ 2 & Action Taken, ECF No. 15-1; Docket Sheet 1-2, doc. 14-2. The third, filed in January 2009, was denied by the Texas Court of Appeals on October 7, 2015, without written order on the findings of the trial court after a hearing. SH04 Writ 2 & Action Taken, ECF Nos. 15-2, 15-8.

         The state appellate court briefly summarized the evidence as follows:

[Petitioner] killed Robert Phelan by shooting him three times with a .380 caliber, semi-automatic pistol. Both before and after he shot Phelan, [Petitioner] took several items that belonged to Phelan's roommate. [Petitioner] later told a friend that he and a co-conspirator [Marcus Johnson] put a gun to Phelan's head, took what they wanted of his roommate's property, and then killed Phelan.

         Op. 2-3, ECF No. 14-3. There was also evidence that Petitioner was a member of the West Side Rolling 60's Crip gang and was engaged in drug dealing and other criminal activities at the time of the murder. Reporter's R., vol. 6, 225, 239, 306, 313, ECF No. 14-9.

         II. ISSUES

         In this federal habeas-corpus petition, Petitioner grounds for relief fall within two general categories: (1) laches and ineffective assistance of trial counsel (grounds one, two, and four through seven) and (2) denial of Petitioner's motion for continuance (ground three). Pet. 6-7, 11-12, ECF No. 3.


         Respondent asserts that Petitioner's ineffective-assistance-of-counsel claims, which were barred by laches in his third state habeas proceeding, are procedurally barred from the Court's review under the procedural default doctrine. Resp't's Answer 25-26, ECF No. 18. Otherwise, she does not believe that Petitioner's claims are unexhausted or that the petition is successive for purposes of § 2244(b) or barred by limitations under § 2244(d).


         Petitioner raised his ineffective-assistance-of-counsel claims in all three of his state habeas applications. The state habeas court set out the procedural history of the postconviction proceedings in his case as follows:

4. [Petitioner] appealed his conviction.
5. The Second Court of Appeals affirmed [Petitioner]'s conviction on January 15, 1998.
6. Mandate was issued on March 26, 1998.
7. [Petitioner] filed his first application for writ of habeas corpus on July 19, 2004.
8. [Petitioner]'s first application was dismissed for non-compliance on August 25, 2004.
9. [Petitioner]'s first application was filed over six years after mandate issued.
10. [Petitioner]'s second application was filed on September 22, 2004.
11. Hon. Sylvia Andrews filed her first affidavit on July 18, 2005.
12. [Petitioner]'s second application for writ of habeas corpus was partially granted and he was granted an out-of-time petition for discretionary review.
13. [Petitioner]'s petition for discretionary review was refused on October 6, 2008.
14. [Petitioner] filed this third application for writ of habeas corpus on January 15, 2009.
15. The trial court ordered another affidavit from Hon. Andrews on February 3, 2009.
16. On March 13, 2009, the State requested a sixty day extension on the behalf of Hon. Andrews for her to file her affidavit due to a difficulty in contacting her.
17. On August 2, 2010, this Court appointed Hon. Bob Ford to represent [Petitioner] and procure an affidavit from Hon. Sylvia Andrews.
18. On October 1, 2010, Hon. Andrews filed her second affidavit.
19. This Court has personal knowledge that the State proceeded to try and get a supplemental affidavit from Hon. Andrews from October, 2010 until August, 2012.
20. After the untimely death of Hon. Bob Ford in late 2011, Hon. Scott Brown was appointed to represent [Petitioner].
21. On August 6, 2012, the State requested a hearing to give Hon. Andrews an opportunity to testify and explain her representation because it felt her affidavits did not adequately address the issues.
22. A hearing was held in this proceeding on January 24, 2013.
23. The reporter's record of the hearing was filed on May 17, 2013.

State Writ (part 2) 328-29, ECF No. 15-9 (record citations omitted).

         Clearly, Petitioner's ineffective-assistance claims were not considered by the state courts in his first state habeas application, which was dismissed for noncompliance with the form requirements; the claims were dismissed as premature in his second application; and the claims were barred by laches in his third application. SH03 362, ECF No. 15-9.

         Under the procedural default doctrine, “[a] federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Beard v. Kindler, 558 U.S. 53, 55 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state-law ground may be a substantive rule dispositive of the case or a procedural barrier to adjudication of the claim on the merits. See Walker v. Martin, 562 U.S. 307, 315 (2011) (citing Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977)). To qualify as an “adequate” procedural ground, a state rule must be “firmly established and regularly followed.” Id. at 316 (quoting Kindler, 558 U.S. at 60). A discretionary state procedural rule “can serve as an adequate ground to bar federal habeas review.” Id.

         Under his second ground, Petitioner claims that the state habeas court's factual findings and legal conclusions adopting the doctrine of laches are “both contrary to and unreasonable as set out under” § 2254(d)(1) and (2). Petitioner was represented at trial by Sylvia Andrews. The state habeas judge, who conducted the hearing on Petitioner's ineffective-assistance claims in January 2013, entered the following relevant factual findings on the issue:

24. Hon. Andrews' 2005 affidavit contained a lot of errors regarding the underlying facts of this offense.
25. Before preparing her two affidavits, Hon. Andrews had not read the record, clerk's file, her file, or the investigator's file and were based completely on her near decade old memory.
26. Hon. Andrews' 2005 affidavit is evidence that she had already begun forgetting specific details of her representation of [Petitioner] ¶ 1996.
27. Hon. Andrews' 2005 affidavit is evidence that the State was prejudiced by [Petitioner] waiting over eight years to file a proper application due to Hon. Andrews' diminished memory.

SH10 Writ 327-28, ECF No. 15-8 (record citations omitted).

         Based on her findings, and relying solely on state law, the judge entered the following legal conclusions in barring the claims:

3. The doctrine of laches may be employed in a Court's determination of whether to grant relief in any given 11.07 case.
4. The State is no longer required to make a particularized showing of prejudice for a writ claim to be barred by laches.
5. A court may consider anything that places the State in a less-favorable position, including their ability to re-try a case, in determining whether an applicant's delay has prejudiced the State's ability to respond to his claims.
6. Trial courts may consider the diminished memory of trial participants and the diminished availability of the State's evidence as well as afford adequate weight to the State's broad interest in the finality of a long-standing conviction.
7. While the [Texas] Court of Criminal Appeals has declined to set a specific time period for applying the laches doctrine, claims made more than five years after a conviction becomes final demonstrates material prejudice.
8. The State has been prejudiced by [Petitioner]'s six year delay in bringing this writ application due to diminished memory regarding this case.

Id. at 362 (citations omitted).

         The Texas Court of Criminal Appeals, adopting the trial court's findings, denied relief. Thus, the state courts' decision rests on an independent and adequate state rule. See Walker, 562 U.S. at 317 (holding California's discretionary time rule is an independent and adequate state bar preventing federal habeas review); Kelley v. Zoeller, 800 F.3d 318, 327 (7th Cir. 2015) (claim barred by laches is an independent and adequate state law ground preventing federal habeas review); Smith v. Addison, 373 Fed. App'x 886, 2010 WL 1544366 at *2 (10th Cir. Apr. 20, 2010) (same). The Court finds no precedent established by the United States Supreme Court prohibiting states from applying the common law doctrine of laches in state habeas proceedings. Furthermore, counsel's affidavits and testimony at the evidentiary hearing establish that counsel had diminished memories of the events surrounding her representation of Petitioner such that the state incurred a disadvantage in responding to Petitioner's ineffective-assistance claims. Thus, this Court cannot conclude that the state courts' findings and legal conclusions on the issue were unreasonable. Petitioner is not entitled to relief under his second ground.

         A habeas petitioner may overcome a state procedural bar by demonstrating either cause and actual prejudice for the default or a showing that he is actually innocent of the crime for which he stands convicted. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Ylst v. Nunnemaker, 501 U.S. 797, 801-07 (1991); Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000). “Cause” can be established by showing that “some objective factor external” to the petitioner, something that cannot fairly be attributed to him, prevented him from properly raising the claim(s) in state court. McClesky v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1980)).

         Toward that end, Petitioner asserts that his ineffective-assistance claims should not be procedurally barred from federal habeas review because

[i]t was conclusively determined at the habeas hearing on January 24, 2013, that Petitioner was never notified by appellate counsel that mandate was issued and he could file a P.D.R. On January 8, 2008, [the state habeas judge] dismissed Petitioner's [second] writ as premature and granted him the right to file an out of time appeal. He quickly did and it was denied. He quickly filed his [third] writ and years were spent trying to get adequate affidavits from trial counsel before the state requested the 2013 hearing. Petitioner did not sleep on his rights. All delays were due to the state and ineffective counsels. If the state felt prejudiced, then the Petitioner should have been ordered a new trial instead of an out of time appeal.

Pet. 6, ECF No. 3.

         Assuming, without deciding, that the extreme delays in the state courts and difficulty obtaining affidavits from counsel constitute cause to excuse Petitioner's procedural default, he cannot demonstrate prejudice therefrom. Petitioner had no counsel in his initial state habeas proceeding, thus the rule in Martinez/Trevino may excuse his procedural default of the claims if he can demonstrate that the claim is “substantial.” For an ineffective-assistance claim to be substantial, a petitioner “must demonstrate that the claim has some merit.” Martinez v. Ryan, 566 U.S. 1, 14 (2012); Trevino v. Thaler, 569 U.S. 413, 429 (2013). Conversely, an “insubstantial” claim is one that “does not have any merit” or that is “wholly without factual support.” Id. at 16.

         Under the familiar Strickland standard, 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.

         Petitioner claims that his trial counsel was ineffective by-

- failing to challenge three jurors for cause (ground one);
- failing to request an accomplice witness instruction (ground four);
- failing to request an extraneous offense instruction (ground five); and
- failing to object to admission of heresay statements of codefendant Marcus Johnson admitted through Detective Thomas Lenoir's testimony (ground six).

         He also claims the cumulative effect of counsel's omissions rendered his trial fundamentally unfair (ground seven). Pet. 6-7, 11-12, ECF No. 3; Pet'r's Mem. 17, ECF No. 4. Notwithstanding the laches bar, the state habeas court entered findings of fact and conclusions of law applying the Strickland standard to Petitioner's claims and the Texas Court of Criminal Appeals adopted those findings in denying relief. Petitioner fails to rebut the presumptive correctness of the states' factual findings with clear and convincing evidence; thus, we apply the presumption of correctness to those findings in considering Petitioner's claims.

         Counsel responded to Petitioner's claims in two affidavits filed in state court. In the first, filed in 2005, she averred (all spelling, punctuation, and/or grammatical errors are in the original):

I, Sylvia Andrews, was appointed . . . to represent [Petitioner] after grievances were filed by [Petitioner] against his then current attorneys. I was appointed in October. Due to the time factor, the bailiffs brought [Petitioner] immediately to the jury room for the 371st District Court. (We would meet there several other times during the course of my preparation for trial in an effort to provide [Petitioner] a private, comfortable and quiet area to assist me in his defense. I met with [Petitioner] and explained that I had been appointed and that the Court had indicated to me that the trial would continue as planned. We had a lengthy and pleasant visit. He seemed pleased that I would be representing him and understood that with a December trial date we had much to do. I informed him that I had reviewed the clerks' file containing motions that had been filed earlier, that they were in order, and that I would be adopting those motions. He understood and agreed. [Petitioner] was a very bright individual (he had been in management with Taco Bell) and had a well thought-out plan for his defense . . . but that was the problem, because he didn't really have a defense nor did he have an alibi. I explained to [Petitioner] my most important concern about his defense: he would have to take the stand. We talked at length about the pros and cons of testifying. Finally, [Petitioner] agreed that as a strategy for trial and for appellate purposes he would assert his 5th amendment right to remain silent. [Petitioner] had a very convoluted and ever-changing explanation for perhaps the biggest hurdle we faced, besides the dead injured party: his keys were found in the living room, a few feet from the deceased.
It was no secret that [Petitioner] was involved in selling illegal drugs, though he was not a drug user. It was a business that was incredibly more profitable than training future taco sellers. The State's case was this was simply “a drug deal gone bad”. [Petitioner] at times insisted he was not there and on other occasions that he was and his keys somehow got left behind. Each time we would meet he would have recalled some new and critical piece of information. That was problematic on several fronts. First, it was becoming clear that it would be difficult to trust [Petitioner] and even more troublesome if he ever were to take the stand. Second, it was almost impossible to verify anything he said. Finally, it was a real impediment to preparation of a trial strategy with the ephemeral defense(s) he offered. In the end, I suggested that he could remember whatever he wanted just get one memory and stick with it.
During the trial, if I did anything wrong it would be that I listened to [Petitioner]. He was difficult during the entire trial. He was constantly writing notes with specific questions to things, by the way, that I was hearing for the first time from him. He would whisper in my ear, if I ignored his notes. It was very difficult to ask questions and/or make timely and legal objections when he was in my ear, not only telling me what he wanted done, but why and how it was central to something new he had just remembered. He was out of control. At one point, I asked for a recess to find out what-the-heck he was talking about. Well, not only had it come to him how his keys got to the crime scene, but he wanted to take the stand. I was stunned. (But I probably shouldn't have been). Not only did he want to take the stand with a story I had not heard, but it was the most cockamamie thing one could imagine. At that point, I was sure that I couldn't believe a word coming from this guy's mouth. I didn't want to solicit untrue statements and I really didn't want to lose what credibility we had with the jury. Without the jury present, I put him on the sand and went over our previous plan for him to not testify. He explained to the court that he had changed his mind. He admitted that it was against the advice of counsel. And off we went to prepare for his direct examination later that afternoon, when he would have the opportunity to tell the jury that he had been there earlier from somewhere and dropped his keys on his way out going to wherever. It was the kind of story that's hard to remember because not one word of it rang true. It was embarrassing for everyone. I don't think the State kept him on the stand 5 minutes. The jury was back in half an hour.
I made one other mistake. In my effort to be effective in representing [Petitioner], I empowered him. And it probably ended up being the thing that, ultimately, did him in. And those keys didn't help things much either.

SH03 Writ 66-67, ECF No. 15-1.

         In the second, supplemental affidavit, filed in 2010, counsel averred:

After reviewing the attached writ, there is little to be added on my part. [Petitioner] continues to have his own unique recollection of the facts related to his trial. I will reiterate that at no time did I encourage or coerce [Petitioner] to testify. It was only after the State had presented its case that he determined he wanted to testify. His taking the stand, in fact, was something I discouraged. The final decision regarding his testimony was his, despite my recommendations.
Finally, with regard to [Petitioner]'s handwritten notations on my original affidavit I find them argumentative and without substance. With regard to his complaints regarding the dates of appointment, pretrials, etc., the docket can be reviewed. As to his assertions of contradiction and misrepresentation of events within my affidavit, I submit these are his opinion, to which it is impossible for me to respond.

SH10 Writ 73, ECF No. 15-8.

         Under his first ground, Petitioner claims counsel was ineffective by failing to challenge three veniremen, Adamski, Smith, and Tello, for cause, resulting in the seating of a tainted jury. Pet. 6, ECF No. 3. Specifically, he asserts that Adamski was challengeable because she stated that she had emotional problems that would affect her substantially; Smith was challengeable because he stated that he had experience with gang members and would use his outside knowledge and experience in his judgment; and Tello was challengeable because he stated that he was from Columbia, the most violent country in the world, full of gangs, and that he would give a police officer's testimony more credibility than a gang member's. Id.

         The state habeas court found that, sixteen years after the fact, counsel could no longer recall why she did not strike the jurors but that there was no evidence in the record that the jurors were challengeable for cause under article 35.16 of the Texas Code or Criminal Procedure. SH10 Writ 332-38. Specifically, the court entered the following relevant findings of fact regarding this issue:

81. Hon. Andrews' initial defense was to attack the credibility of the State's witnesses' investigation.
82. At the time of voir dire, Hon. Andrews did not anticipate that [Petitioner] would testify.
83. The witnesses Hon. Andrews planned to call were not gang members, drug dealers, or drug users.
84. The only gang members, drug dealers, and drug users Hon. Andrews anticipated during voir dire would testify were ...

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