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Thornburg v. Davis

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

April 17, 2018

JEREMY PAUL THORNBURG, TDCJ No. 01957650, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. v.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Petition for Writ of Habeas Corpus (“the Petition”) filed by Petitioner Jeremy Paul Thornburg pursuant to 28 U.S.C. § 2254. ECF No. 3. United States District Judge Reed C. O'Connor transferred this case to the Wichita Falls Division on July 27, 2017. ECF No. 5. On July 28, 2017, Judge O'Connor referred the case to the undersigned per Special Order No. 3. After considering the pleadings and applicable law, the undersigned RECOMMENDS that Judge O'Connor DENY the Petition for Writ of Habeas Corpus (ECF No. 3).

         PROCEDURAL BACKGROUND

         Petitioner Jeremy Paul Thornburg (“Thornburg”) is a prisoner confined in the Ferguson Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (“TCDJ-CID”), in Midway, Texas. ECF No. 3 at 1. He is serving a life sentence. Id. at 2. Because Thornburg is incarcerated within the Texas Department of Criminal Justice, a proper respondent in this case is Lorie Davis, the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (the “Director”). See Joe v. Fitzsimmons, No. 3:16-CV-0275-L-BH, 2016 WL 1594348, at *1 (N.D. Tex. Mar. 17, 2016), report and recommendation adopted, No. 3:16-CV-275-L, 2016 WL 1588150 (N.D. Tex. Apr. 20, 2016) (citing Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004)).

         Thornburg was indicted for murder on March 25, 2013. ECF No. 18 at 3. He was convicted and sentenced to life imprisonment by a jury on October 21, 2014. Id. He appealed his conviction to the Second Court of Appeals, Fort Worth, Texas (“COA”), which affirmed. ECF No. 1 at 3; Thornburg v. State, No. 02-14-00453-CR, 2015 WL 4694094, at *2 (Tex. App.-Fort Worth Aug. 6, 2015, pet. ref'd). The Texas Court of Criminal Appeals (“TCCA”) refused his petition for discretionary review (“PDR”) on November 4, 2015. ECF No. 20-1.

         Thornburg then brought a state writ of habeas corpus before the TCCA on July 15, 2016. ECF Nos. 1 at 3-4; 18 at 3. On September 21, 2016, the TCCA remanded the case to the trial court for further findings of fact. ECF No. 20-63; Ex parte Thornburg, WR-85, 650-01, 2016 WL 5118443, at *1 (Tex. Crim. App. Sept. 21, 2016). The trial court made findings on March 6, 2017. ECF No. 20-60 at 275. The TCCA subsequently denied the writ without written order on the findings of the trial court, on April 26, 2017. ECF No. 20-55.

         Thornburg filed the Petition in this Court on July 3, 2017. ECF No. 3. Pursuant to this Court's Order (ECF No. 9), the Director filed a preliminary response on February 15, 2018. ECF No. 18. Thornburg filed a reply on February 28, 2018. ECF No. 23. The parties agree that the Petition is neither barred by the statute of limitations nor is it successive. ECF No. 3 at 11; No. 18 at 12.

         FACTUAL BACKGROUND

         The COA adopted Thornburg's statement of the facts. Thornburg, No. 02-14-00453-CR, 2015 WL 4694094, at *1 n.2. Those facts are as follows:

         A. Overview

         On the morning of December 11, 2011, Johnny Salinas discovered that his grown granddaughter, Candice Shields [hereinafter, “Shields”], was missing from her bedroom when he went to wake her for work. At first, he assumed that she had left in the night to “party, ” but her phone was still on her bed; her purse and make up were still in the bedroom as well. As the morning wore on and Shields did not show up, Salinas grew increasingly worried. Eventually, Salinas hit redial on Shields's phone, and the call went to Shields's best friend, Missy Munn. Salinas explained his concerns to Munn, and she came to his house.

         Later that morning, Shields's ex-boyfriend, Billy Wilson, joined Munn at Salinas's home, and because he had never seen Shields leave the house without her purse, cell phone, and make up-all of which were still in her bedroom-he called the Graham police. The police interviewed the family, and based on their conversations with the family, with Wilson, and with Munn, the police began treating Shields's disappearance as a missing-person case. Thereafter, in the ensuing weeks and months that followed, despite a massive search by law- enforcement officials and civilian volunteers-which included helicopters, fourwheelers, and cadaver dogs and which covered untold miles of search area- Shields was never found.

         B. Testimony Concerning Shields's Background

         Shields grew up in Graham and was convicted of a sex crime as a juvenile; as a result, she was required to register as a sex offender. At age seventeen, Shields left her parents' home and moved in with Wilson and his family in Jermyn, Texas, and eventually had a child with Wilson. In the latter part of May 2011, Shields left Wilson and moved to Abilene to live with a man named Allen Faircloth. When Shields's relationship with Faircloth soured in the summer of 2011, she called Wilson to give her a ride back to Graham, and she moved in with Munn.

         In October 2011, Shields moved in with her friends James and Misty Barnett. On the same day that Shields moved in, James Barnett's half-brother, Thornburg, also moved into the Barnetts' home. Within a short time after Shields met Thornburg, they began a romantic relationship, and within a couple of weeks, they announced that Shields was pregnant with Thornburg's baby. Misty grew scared of Thornburg, and he and Shields were asked to move out of the Barnetts' home.

         Because the couple had nowhere to go and because Thornburg was unemployed, he moved back into his mother and stepfather's home in Sweetwater; Shields moved into her grandparents' home in Graham and disappeared approximately ten days later.

         Shields used to call her mother daily, but her mother had not heard from Shields since her disappearance.

         C. Testimony by Law-Enforcement Officials

         1. Lieutenant Jim Reeves

         Lieutenant Jim Reeves of the Graham Police Department headed up the investigation into Shields's disappearance. Initially, he gathered information from her friends and family members, as well as contacts from Shields's cell phone. The data recovered from Shields's cell phone revealed that up until the day of her disappearance, Shields had almost daily communications with Wilson, Faircloth, Thornburg, and possibly other men.

         Lieutenant Reeves testified that he called Texas Ranger Cory Lain to help with the investigation of Shields's disappearance and that they began a series of interviews to determine if anyone had ideas on where Shields might have gone. Lieutenant Reeves testified that Faircloth and Wilson had verified alibis for the night of Shields's disappearance.

         When Lieutenant Reeves interviewed Thornburg by phone on December 15, 2011, Thornburg claimed that he had been in Sweetwater on the night that Shields had disappeared and that he did not have gas money to drive to Graham on that night. Two weeks later, on December 29, 2011, Lieutenant Reeves and Ranger Lain drove to Sweetwater to interview Thornburg in person at the Sweetwater police station. Thornburg maintained that he did not know where Shields had gone. Lieutenant Reeves detailed for the jury the extent of law enforcement's efforts to find Shields over the course of the following months wherever and whenever a lead developed.

         2. Officer Lance Richburg

         Thirteen months after Lieutenant Reeves and Ranger Lain interviewed Thornburg, Officer Lance Richburg with the Sweetwater Police Department met with Thornburg's ex-girlfriend, Sarah Santiago, on January 21, 2013, to take her statement on a domestic-violence allegation involving Thornburg. Santiago had called the police the night before and had alleged that Thornburg had assaulted her. Because Santiago was seven months' pregnant with Thornburg's baby, the police who responded to her 911 call advised her to go to the hospital and to wait until the following day to go to the police department to make a statement.

         When she made her statement on January 21, 2013, Santiago said that she was scared of Thornburg because he had threatened to kill her and her unborn baby and to bury them in a field. Santiago said that Thornburg had told her that he had done it before and had gotten away with it. Based on Santiago's statement, Officer Richburg called the Graham Police Department. Lieutenant Jim Reeves of the Graham Police Department responded that Thornburg was a person of interest in an unsolved disappearance in Young County.

         After talking with Lieutenant Reeves, Officer Richburg and three other officers accompanied Santiago back to the apartment that she shared with Thornburg to effectuate a “civil standby” while Santiago gathered her personal belongings. Thornburg was home when the officers arrived, and Officer Richburg explained the nature of their visit and the police department's “civil standby” policy. Thornburg voiced no objections to the police officers' presence and waited outside the apartment while Santiago gathered her belongings, accompanied by Officer Richburg. When Santiago and Officer Richburg entered the couple's bedroom, Santiago pointed to a gun on the bed and said that Thornburg had used it to threaten her. Officer Richburg testified that he took the gun into evidence for the domestic-violence charge.

         3. Additional Testimony from Lieutenant Reeves

         Lieutenant Reeves served a search warrant on the Sweetwater Police Department and obtained the gun that Officer Richburg had recovered from the apartment that Thornburg shared with Santiago. Lieutenant Reeves later delivered the gun to Lubbock's Department of Public Safety crime lab for analysis.

         In response to Santiago's claims about Thornburg's threats to her, Lieutenant Reeves and Ranger Lain approached Santiago and asked her to make a clandestine telephone call to Thornburg.

         4. Ranger Lain

         On February 1, 2013, Ranger Lain [“Lain”] and Lieutenant Reeves staged a controlled phone call between Santiago and Thornburg. During the approximately thirty-minute call, Santiago told Thornburg that she was afraid to move back in with him because she was “afraid [he] would hurt me like you hurt [Shields].” Despite telling Santiago that he did not feel comfortable talking about it over the phone, Thornburg stated, “I killed her because of me-she was going to make it so I couldn't see my daughter . . . .” Santiago asked Thornburg whether he might not kill her too if he got angry with her, and Thornburg answered, “I wouldn't get away with it for two girlfriends.” A recording of the phone call was admitted into evidence and played for the jury.

         Ranger Lain obtained cell phone records for Shields and Thornburg. Ranger Lain testified that the cell phone records revealed that Thornburg and Shields had exchanged text messages and phone calls from 9:32 p.m. on December 10, 2011, until 12:45 a.m. on December 11, 2011, which was Shields's last text message to Thornburg. Thornburg called Shields's phone at 2:32 a.m. and 2:33 a.m.; approximately thirty minutes later, he called Shields's phone at 3:01 a.m. for forty-five seconds and at 3:02 a.m. for fifty-eight seconds. At 6:08 a.m. on December 11, 2011, Thornburg texted Shields, “I'm at home. I've been at home. Didn't have enough gas. I['m] sorry, Babe, that it took so long to text you back, but just know I love you and will text you when I get up.” The bulk of the phone calls and text messages that were reflected in the cell phone records had been deleted from Shields's cell phone.

         When Ranger Lain and Officer Reeves interviewed Thornburg on December 29, 2011, he said that the last time he had spoken to Shields was 2:33 a.m. on December 11, 2011, and that he had fallen asleep right after the 2:33 a.m. phone call. Based on the phone records, Ranger Lain testified that his theory was that Shields was deceased prior to Thornburg's calls to her cell phone at 3:01 a.m. and 3:02 a.m., that Thornburg had called Shields's phone to locate it, that he had found it, that he had deleted the text messages and phone calls, and that he had returned it to her grandparents' home in Graham before he returned to Sweetwater.

         5. Brent Hester

         Brent Hester, a forensic scientist employed by DPS, testified that he had performed a presumptive test on two stains found on the underside of the gun. He said that he had obtained a presumptive positive result for blood on one spot less than one millimeter in diameter, which was almost invisible to the naked eye. From that stain, Hester said that he had obtained a DNA sample that he had compared to Shields's DNA profile from her sex-offender registration requirements, as well as to a DNA sample from a biopsy slide that was maintained in Shields's medical records following an earlier gall bladder surgery. Based on those comparisons, Hester determined that the probability of selecting an unrelated person at random who could be the contributor to the DNA profile obtained from the stain on the gun was “approximately one in 32.39 trillion for Caucasians . . . .”

         6. Jeff Shaffer

         Jeff Shaffer, who managed the United States Secret Service digital forensics lab, testified that he had conducted an analysis of the cell phone records of Thornburg, which Ranger Lain had obtained by subpoena. Shaffer testified that he had analyzed the system identification numbers (SIDs) associated with Thornburg's cell phone carrier reflected in the records as they related to Thornburg's use of his cell phone during the evening and early morning hours of December 10, 2011, and December 11, 2011. Shaffer said that the data indicated that Thornburg's cell phone location had moved from the SID covering the Abilene/Sweetwater geographic area to the SID covering the Vernon geographic area east of Abilene/Sweetwater. Shaffer testified that he could not necessarily say that Thornburg's cell phone indicated travel from Sweetwater to Graham because he did not know the actual location of cell towers associated with the described SIDs. Shaffer said that he could say with certainty that Thornburg's cell phone had traveled generally “from one geographic area to another” west to east on the night in question.

         D. Accomplice-Witness Testimony

         Lajuana Long [hereinafter, “Long”] was another of Thornburg's girlfriends with whom he had a child. In her first interview with Lieutenant Reeves and Ranger Lain shortly after Shields's disappearance in 2011, Long told the officers that she worked with Shields at the Whataburger in Graham, but Long denied having any information about Shields's whereabouts. In her second interview following Thornburg's arrest in 2013, Long told law enforcement officials that she had heard that Shields had moved to Oklahoma in December 2011. After her third interview in March 2013 and after Ranger Lain told her that he thought she was lying, Long told Lain that she knew that Thornburg had murdered Shields and that she knew where her body could be found.

         Long testified at trial and said that she and Thornburg had lived together in Graham until September 2011, when he had begun a relationship with Shields. After Thornburg began dating Shields, Long said that she found out that Shields was a registered sex offender and told Thornburg that she did not want their child around Shields. Long said that Thornburg began to talk about killing Shields. Long also said that Thornburg threatened to make Long “evaporate” if she tried to keep him from seeing their child.

         Late in the day on December 10, 2011, Long said that Thornburg sent her a text that he was coming to Graham, where Long lived with Jessica Cortez, to see Shields. Long testified that she and Thornburg had previously discussed ways of disposing of Shields's body after watching television shows, and that on this occasion, Long asked her if she had any bleach. Late that night, Thornburg arrived at Cortez's mobile home. Long said that she took a half-full bottle of bleach and met Thornburg outside in the driveway. When she asked him whose car he was driving, Thornburg told Long that he had taken the car from his mother's home while she was sleeping. Long said that as they talked, she noticed a gun in the car. Long ultimately gave Thornburg the bleach, and he left. About an hour or two later, Thornburg called Long and told her that he had “[done] what he came to do” and that he was headed back home. When Shields did not show up for work at Whataburger the next morning on December 11, 2011, Long said that she called Thornburg and asked him if he had really killed Shields; he told Long that he had.

         Several days later, Long went to visit Thornburg in Sweetwater and asked him about Shields again. Long testified that Thornburg had told her that after he had persuaded Shields to come out of her house to talk, he had taken her to a field between Graham and Breckenridge and had shot her in the head. Thornburg said that Shields had tried to move after he had shot her, so he shot her again, covered her, and left.

         Long testified that she had initially lied to investigators when she was questioned about Shields's disappearance because she had been scared of Thornburg. Long said that she had entered a plea of guilty to Shields's murder as a co-conspirator in exchange for a thirty-year prison sentence.

         E. Testimony from Other Individuals

         1. ...


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