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Bailey v. Davis

United States District Court, W.D. Texas, San Antonio Division

April 24, 2018

VICTOR E. BAILEY, TDCJ No. 01950776, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          FRED BIERY UNITED STATES DISTRICT JUDGE.

         Petitioner Victor Bailey, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for aggravated robbery. As required by Rule 4 of the Rules Governing Section 2254 Cases, the Court conducted a preliminary review of the petition. Having considered the habeas application (ECF No. 1), respondent's Answer (ECF No. 14), the record (ECF Nos. 15 & 16), Mr. Bailey's Reply (ECF No. 19), and applicable law, the Court finds the petition should be DENIED.

         I. Procedural Background

         A grand jury indictment returned June 13, 2011, charged Victor Bailey, as a habitual offender, with aggravated robbery with a deadly weapon. (ECF No. 15-2 at 9; ECF No. 16-9 at 71). A jury found the petitioner guilty as charged, and he pleaded true to the indictment's enhancement allegations. (ECF No. 16-9 at 55). The 175th District Court, Bexar County, Texas, assessed punishment at 40 years' imprisonment. (ECF No. 15-2 at 30; ECF No. 16-9 at 66). Mr. Bailey appealed, asserting the trial court erred in overruling his motion for a directed verdict. The Fourth Court of Appeals affirmed the judgment of the trial court. Bailey v. State, No. 04-14-00582-CR, 2015 WL 797641, *3 (Tex. App.-San Antonio Feb. 25, 2015, no pet.).

         Mr. Bailey sought a state writ of habeas corpus on February 22, 2016, alleging he was denied the effective assistance of counsel. (ECF No. 16-9 at 5, 11). He also asserted insufficiency of the evidence and Batson claims. (ECF No. 16-9 at 20, 22). The habeas trial court designated issues for resolution. (ECF No. 16-9 at 73). Mr. Bailey's retained trial counsel, Mr. Reece, Mr. Gebbia, and Ms. Anderson, filed affidavits in the state habeas action. (ECF No. 16-9 at 81-86, 93-95, 105-06). The habeas trial court, which was also the convicting court, issued findings of fact and conclusions of law and recommended the writ be denied. (ECF No. 16-9 at 114-25). Mr. Bailey supplemented his habeas pleadings on February 24, 2017, and the habeas trial court issued findings of fact and conclusions of law, recommending the supplemental claims be denied. (ECF No. 16-7). On April 5, 2017, the Court of Criminal Appeals denied the habeas application on the findings of the trial court. Ex parte Bailey, No. WR-85, 068-01, 2017 WL 3205297 (Tex. Crim. App. 2017); ECF No. 16-5.

         In this section 2254 action, petitioner Bailey alleges: (1) he was denied the effective assistance of counsel because counsel: failed to conduct an “independent investigation;” failed to move to exclude evidence of his prior conviction; failed to seek a jury instruction on self-defense; and “abandoned” him at trial; (2) he was denied his right to due process and a fair trial because the prosecutor excluded an African-American juror based on his race; and (3) “The prosecutor failed to cede all favorable evidence pursuant to the Michael Morton Act . . .” (ECF No. 1 at 10).

         II. Factual Background

         The Fourth Court of Appeals summarized the facts presented at trial as follows:

It is undisputed that in the late morning hours of July 6, 2010, Bailey arrived at Classic Diamond Company seeking to sell two rings. Classic Diamond Company is a jewelry store owned and operated by Ralph Benavides. The store front is equipped with a cage-like security door that can only be unlocked by a person behind the interior display case. Once Benavides buzzed Bailey into the store, Benavides proceeded to inspect the rings while Bailey stood watch. A physical altercation ensued between the two men, resulting in property damage to the store and physical injury to Bailey. The blood left at the scene was stipulated to contain the DNA of Bailey.
Benavides testified that he immediately recognized that the stones in the rings were not genuine. Once Benavides informed Bailey of his findings, Benavides testified that Bailey became agitated, said that he paid $2, 000 for the pair of rings, and simultaneously pulled a pistol from his waistband and pointed it at Benavides. Once the weapon was revealed, Bailey said, “I don't want to hurt you, I don't want to shoot you, I just want money.” Benavides claimed that he gave Bailey $50-$75 that he had on his person, and that Bailey placed the money in his pocket. Benavides stated that because he was “. . . scared to death” that he would be harmed, he instinctively grabbed for the gun and a struggle followed.
Benavides tried to disarm Bailey, but was unsuccessful. Once the men gained some distance between one another, Bailey tried to roll over the top of a glass showcase but it shattered and he fell into the showcase of jewelry and broken glass. At that time, Benavides retrieved a gun from a desk. Benavides said that he saw Bailey take a tray of rings from the showcase that he fell into. Once Bailey freed himself from the glass box, Benavides pressed the button that unlocked the door in hopes that Bailey would leave. Bailey then opened the door and paused in the iron-barred cage that is installed in front of the entrance to the store, dropped the tray along with the rings, and walked away. After the State rested, the defense moved for a directed verdict of acquittal. The trial court denied the motion.
Bailey testified in his defense that after Benavides told him the rings were fake, Bailey asked him to check again. At that time, Bailey noticed that Benavides's “diamond checker” was giving off a noise and green lights, meaning that the diamonds were genuine. Bailey asked for his rings back, but Benavides refused. The two men began to argue. Bailey stated that Benavides was the first to pull out a gun. Bailey stated that he never asked Benavides for any money. Benavides trapped Bailey in the security “cage” and when Bailey attempted to buzz himself out, a physical struggle ensued. Bailey stated that the glass showcase broke and that he cut his arm, but that he did not fall through it as Benavides described because it was too narrow. Even though Benavides still had Bailey's rings, Bailey tried to leave the store because he did not want to get in trouble for possessing a gun as a convicted felon. Bailey managed to press the button to get out, and left the store. Because Bailey testified, the jury was made aware of his prior convictions.

Bailey, 2015 WL 797641, at *1.

         Mr. Bailey testified he left the store after the altercation, got into a grey truck he had borrowed from a friend and parked in the parking lot, and drove away. (ECF No. 15-12 at 40-41). Mr. Benavides testified Mr. Bailey fled out the door of the jewelry store and across the street; he told the police he saw a white sedan, possibly a Grand Marquis or what looked like a decommissioned police squad car, stop in the street in front of the store and he observed Mr. Bailey getting into that car. (ECF No. 15-11 at 40-41, 44-45, 90).[1] During cross-examination, the prosecution noted Mr. Bailey told an investigator he or his girlfriend owned a Crown Victoria at the time of the robbery, and that a Crown Victoria is “kind of like a police car.” (ECF No. 15-12 at 48).

         III. Standard of Review

         A. Review of State Court Adjudications

         Mr. Bailey's habeas petition is governed by the standard of review provided by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2254. A petitioner may not obtain federal habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Id. § 2254(d); Brown v. Payton, 544 U.S. 133, 141 (2005). This difficult standard stops just short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).

         A federal habeas court's evaluation of the state court's application of clearly established federal law focuses on whether the state court's decision was objectively unreasonable and not whether it was incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). As long as “fairminded jurists could disagree” on the correctness of the state court's decision, its determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Additionally, a reviewing federal court presumes the state court's factual findings are sound unless the petitioner rebuts the “presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005); Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir. 2010). The presumption afforded factual findings is even stronger when, as in this matter, the state habeas judge making the findings is also the convicting court. See Armstead v. Collins, 37 F.3d 202, 207-08 (5th Cir. 1994).

         B. Review of Sixth Amendment Claims

         The Court reviews claims of the alleged ineffective assistance of trial counsel under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a petitioner must demonstrate counsel's performance was deficient and this deficiency prejudiced his defense. Id. at 687-88, 690. The Supreme Court has held that “[s]urmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

         When determining whether counsel performed deficiently, courts “must be highly deferential” to counsel's conduct, and a petitioner must show that counsel's performance fell beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). There is a strong presumption that an alleged deficiency “falls within the wide range of reasonable professional assistance.” Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012). To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

         When considering a state court's application of Strickland, this Court's review must be “doubly deferential, ” to afford “both the state court and the defense attorney the benefit of the doubt.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015), citing Yarborough v. Gentry, 540 U.S. 1, 6 (2003). When evaluating Mr. Bailey's complaints about the performance of his counsel under the AEDPA, the issue before this Court is whether the Texas Court of Criminal Appeals could reasonably have concluded Mr. Bailey's complaints about his counsel's performance failed to satisfy either prong of the Strickland analysis. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003).

         IV. ANALYSIS

         A. Ineffective Assistance of Counsel

         Petitioner Bailey contends his counsel was ineffective because counsel: failed to investigate; failed to file a motion in limine to exclude evidence of his past convictions; failed to request a self-defense instruction; and failed to appear at trial.

         1. Failure to investigate

         The petitioner argues his counsel was ineffective because he failed to interview a jewelry expert and failed to investigate the existence or availability of surveillance video. Mr. Bailey raised these claims in his state habeas action and the claims were denied.

         A defendant may show counsel's assistance was deficient if the attorney failed to make a reasonable investigation into the case before trial. Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994). Counsel must, at minimum, interview potential witnesses and make an independent investigation of the facts and circumstances of the case. Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013).

         Mr. Bailey's counsel addressed this claim via an affidavit in the state habeas action:

. . . Trial counsel had a licensed investigator who determined that there was no video from the store, and did go to the scene to investigate the scene. Our investigator also talked at length with the victim, and the results were communicated to [Bailey on] many occasions. [Bailey] never requested that his attorneys obtain a “jewelry expert”, but in any event counsel does not believe one would have helped at all. The investigator was instructed to attempt to talk to the victim, but again the physical evidence, to wit a trail of the defendant's blood, and identification testimony contradicted [Bailey]'s version. Our investigator interviewed the victim of the case and confirmed that the cameras in the store were “dummy cameras”. The victim convinced the investigator that Mr. Bailey committed aggravated robbery. The investigators were appointed by orders of the court on April 5, 2013[, ] and thus we were prepared on this case shortly thereafter. We had several meetings with the investigators over the course of our representation.

(ECF No. 16-9 at 82).[2]

         The habeas trial court found Mr. Reece's affidavit to be “truthful and credible, ” (ECF No. 16-9 at 117), a finding adopted by the Court of Criminal Appeals when denying Mr. Bailey the writ. Mr. Bailey has not rebutted the state court's finding of fact with clear and convincing evidence, but instead offers only conclusory statements which are insufficient to support a claim of ineffective assistance of counsel. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). The petitioner's conclusory allegations are not “clear and convincing evidence” sufficient to overcome the presumption of correctness attributed to the trial court's finding of counsel's credibility and competence. See Miller v. Thaler, 714 F.3d 897, 903 (5th Cir. 2013).

         The record indicates counsel did investigate the law and facts of Mr. Bailey's case, and made strategic decisions which were not unreasonable. Counsel's strategic choices, made after a thorough investigation of the law and facts relevant to plausible options, are virtually unchallengeable. Strickland, 466 U.S. at 673; Pape v. Thaler, 645 F.3d 281, 289-90 (5th Cir. 2011). With regard to the video surveillance footage from the gas station across the street from the jewelry store, the “tape” was apparently never in the possession of the police, although a non-testifying officer did view the footage. (ECF No. 15-11 at 106).[3] The police detective in charge of the investigation noted that the gas station across the street from the jewelry store had a functioning video surveillance camera at the time the crime occurred, but that the police were unable to secure a physical copy of the footage. (ECF No. 15-11 at 126-27). No. testimony was offered as to the content of the footage, i.e., as to the inculpatory or exculpatory nature of the video surveillance.

         Mr. Bailey's counsel, however, used the absence of the video to bolster the defense argument there was insufficient evidence to support Mr. Benavides' version of the events. In response to the prosecution's opening remarks, defense counsel stated: “the only evidence of [the prosecution's theory of the case], that they have is one person's testimony, the store owner. That's it. There is no video. No. witnesses. Just this one store owner.” (ECF No. 15-11 at 13). Counsel also used the absence of video from the victim's security cameras to highlight the contradiction between the victim's testimony, i.e., that “[his] video system was down, ” with his statement to the defense's investigator that the store's video system utilized “dummy” cameras. (ECF No. 15-11 at 59-60, 155). The defense's investigator testified: “When I had asked [] Mr. Benavides if he had security video surveillance, he said that he only had what was make believe cameras. He did not have real cameras.” (ECF No. 15-11 at 91, 99, 106). In closing argument, counsel noted:

He says he has cameras. He has got big signs that say, “I have cameras in use.” Right? Boy, if there was a camera in use this would be pretty dog-gone easy, wouldn't it? But we don't have any cameras. We don't have any video. In fact, my investigation uncovered the cameras ...

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