United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
R. MEANS, UNITED STATES DISTRICT JUDGE.
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Petitioner, Gerald Desmond
Griffin, 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.
FACTUAL AND PROCEDURAL HISTORY
7, 2014, in Criminal District Court Number Four, Tarrant
County, Texas, No. 1360873D, a jury found Petitioner guilty
on one count of engaging in organized criminal activity and
one count of aggravated robbery with a deadly weapon and
assessed his punishment at 75 years' confinement on each
count. (SHR 73, 78, doc. 19-21.) Petitioner appealed
his conviction, but the Second District Court of Appeals of
Texas affirmed the trial court's judgment. (Id.
at 108.) Petitioner also filed a state post-conviction
application for a writ of habeas corpus challenging his
convictions, which was denied by the Texas Court of Criminal
Appeals without written order on the findings of the trial
court. (SHR 2-19 & Action Taken, docs. 19-21 & 9-19.)
appellate court set out the factual background of the case as
On the evening of October 6, 2012, Marcus Brooks drove Naomi
Cilumba to her friend's apartment after having dinner
together. They were sitting in Brooks's car talking when
they noticed someone circling the car trying to see in. The
person then opened the driver's side door and held a gun
to Brooks's head. The person wore a dark-colored bandana
around his face and an orange hoodie. Brooks saw another
person standing behind the car also wearing an orange hoodie.
He also noticed an “older-model vehicle” behind
The man with the gun tried to open the back door of the car,
at which point Brooks was able to grab the gun from him.
Brooks testified that he grabbed for the gun because
“that was [his] . . . only time to make [his] move, to
make it through the night.” Both attackers ran off, and
Brooks shot at one of them “four to five times.”
Brooks and Cilumba drove away, and Brooks called the police.
Fort Worth police arrived at the apartment complex where the
shooting had occurred and found Keandrick Reed lying in the
parking lot. Reed had been shot, and people were tending to
his wounds. Police found a bloody bandana “that had
been tied to be fashioned around your face, ” bullet
casings, and a cell phone. Police later found a hoodie that
matched the description that witnesses had given of the
suspects. Both the bandana and hoodie were bloody and had
Reed confessed to the attempted robbery and named Demarrio
Handy as the person who had the gun that night. He also
stated that [Petitioner] had picked them up and had taken
them to the location of the incident. Reed testified that
they had planned to commit robbery and split the money among
the three of them.
Reed testified that he, Handy, and [Petitioner] were members
of a street gang called the Untamed Gorillas or 7 Tre.
[Petitioner] was an “OG, ” short for
“Original Gangster, ” a high-ranking member of
the gang. Reed said that as a lower-ranking member of the
gang, he would have to follow orders that an OG gave.
(Mem. Op. 1-3, doc. 19-3.
raises seven grounds for relief, complaining of ineffective
assistance of counsel (grounds one through five); denial of
his right to confront and cross-examine witnesses (ground
six); and insufficiency of the evidence (ground seven). (Pet.
6-7 & Insert, doc. 1; Traverse 1-8.)
RULE 5 STATEMENT
does not move for dismissal of the petition for failure to
exhaust state-court remedies and does not believe that the
petition is barred by the statute of limitations or subject
to the successive-petition bar. (Resp't's Answer 5,
STANDARD OF REVIEW
§ 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (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 determined 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. 28 U.S.C. § 2254(d)(1)-(2); Harrington
v. Richter, 562 U.S. 86, 100-01 (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.
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.
Further, when the Texas Court of Criminal Appeals denies
relief in a state habeas-corpus application without written
order, it is “presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.”
Richter, 562 U.S. at 99. In such a situation, a
federal court may assume 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); Catalan v.
Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002);
Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.
2001); Goodwin v. Johnson, 132 F.3d 162, 183 (5th
Cir. 1997). A petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
See 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).
state habeas judge, who also presided at Petitioner's
trial, entered findings of fact and conclusions of law
relevant 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
state courts' factual findings with clear and convincing
evidence; thus, the Court applies the presumption of
correctness to those findings, including the court's
credibility findings, in considering Petitioner's claims.
See Richards v. Quarterman, 566 F.3d 553, 563-64
(5th Cir. 2009); Galvan v. Cockrell, 293 F.3d 760,
764 (5th Cir. 2002).
Ineffective Assistance of Counsel
criminal defendant has a constitutional right to the
effective assistance of counsel at trial. 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.
applying this test, a court must indulge a strong presumption
that counsel's conduct fell within the wide range of
reasonable professional assistance or sound trial strategy.
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. Where a petitioner's
ineffective-assistance claims have been reviewed on their
merits and denied by the state courts, federal habeas relief
will be granted only if the state courts' decision was
contrary to or involved an unreasonable application of the
Strickland standard in light of the state-court
record. Richter, 562 U.S. at 100-01 (quoting
Williams v. Taylor, 529 U.S. 362, 410 (2000));
Bell v. Cone, 535 U.S. 685, 698-99 (2002). Thus, a
federal court's review of state-court decisions regarding
ineffective assistance of counsel must be “doubly
deferential” so as to afford “both the state
court and the defense attorney the benefit of the
doubt.” Burt v. Titlow, 134 S.Ct. 10, 13
(2013) (quoting Cullen v. Pinholster, 563 U.S. 170,
claims his trial counsel, Daniel Young, was ineffective by
(1) opening the door to multiple extraneous robberies; (2)
failing to move for a directed verdict on the grounds that
the state failed to prove the 7 Tre gang was a criminal
street gang that continuously or regularly committed criminal
activities; (3) failing to object to the statutory definition
of “criminal street gang” as unconstitutionally
vague; (4) waiving “objection to the twitter photograph
which was obtained without a warrant and was based on
hearsay”; and (5) failing to move for a directed
verdict on the grounds that the state failed to prove that a
robbery or an attempted robbery was the motivation of his
co-defendants. (Pet. 6-7 & Insert, doc. 1; Traverse 1-8,
filed an affidavit in the state habeas proceedings, in which
he responded to the allegations as follows (all spelling,
grammatical, and/or punctuation errors are in the original):
I was appointed to represent [Petitioner] on or about
December 12, 2012 on what turned out to be a number of
different cases. Ultimately, [Petitioner] was indicted for
four aggravated robberies (each enhanced to habitual
punishment) and charged with one misdemeanor assault. The
four robbery cases each alleged two counts: [Petitioner]
Engaged in Organized Crime (by committing aggravated robbery)
and [Petitioner] committed aggravated robbery. The four filed
robbery cases against [Petitioner] spanned a several day
period, from October 3 through October 6, 2012. Three of the
robberies were alleged to have been committed on October 3,
2012 in Arlington; the fourth robbery, and the robbery that
is the subject of this writ, was alleged to have been
committed on October 6, 2012 in Fort Worth.
Two accomplices were also indicted for the same four
robberies for which [Petitioner] was indicted: Demarrio Handy
and Keandrick Reed. Handy was also charged with the same
misdemeanor assault that [Petitioner] was charged with. In
none of the robberies for which [Petitioner] was indicted was
he identified by any victims or neutral witnesses, nor was
there any direct forensic evidence (fingerprints, DNA, video,
etc.) implicating [Petitioner]. The State's overall
theory was that [Petitioner] was an original gangster who
recruited or encouraged or required Handy and Reed, as newer
gang members, to commit robberies and split the proceeds with
him. Per the State' theory, [Petitioner] would sometimes
select the robbery victim, he would scope out locations, he
would drive Handy and Reed to the robbery locations, and he
would pick them up afterwards. Thus, the State's theory
of criminal liability was based on [Petitioner]'s being a
party to the robberies. Handy and Reed were also charged with
additional robberies occurring in Arlington and Fort Worth.
In some, but not all of these additional robberies,
[Petitioner] was implicated, but not indicted.
The robbery conviction that is the subject of this writ,
Cause No. 1360873, was the last robbery that [Petitioner] and
his two accomplices committed together on October 6, 2012.
Reed was shot multiple times during this robbery, survived
his wounds, and testified against [Petitioner] at trial.
Essentially, the State's evidence against [Petitioner]
was the testimony of Reed and Reed's cell phone records
showing communications between Reed's phone and
[Petitioner]'s phone on the date and at the time in
question. Reed's cell phone was found in the parking lot
at the scene of the robbery where Reed was laying after being
shot several times by the intended victim after the victim
wrestled the gun away from Handy. As he was recovering in the
hospital, Reed informed the police about the prior robberies
that he and Handy and [Petitioner] had committed. He also
told the police about aggravated robberies that he and others
had committed not involving [Petitioner] per se. One of the
prior aggravated robberies that Reed informed the police
about for which [Petitioner] was not indicted was another
robbery involving [Petitioner] acting as a party that
occurred in Fort Worth approximately thirty minutes before
the robbery currently under review. Per Reed, [Petitioner]
was the driver and Reed and Handy were the actual robbers in
the earlier robbery.
The robbery case that is the subject of this writ was not the
first robbery case that went to trial involving [Petitioner]
and his two accomplices. In the first case that went to
trial, [Petitioner] was tried for Engaging in Organized Crime
and Aggravated Robbery on or about February 6, 2014 in Cause
No. 1304800. The alleged victim was Sean Crosby. In that
case, Mr. Reed testified as to how [Petitioner] dropped him
and Handy off to commit an aggravated robbery on October 3,
2012 at or near an apartment complex in Arlington and picked
the two up after the robbery. As in the case at hand, Reed