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Griffin v. Davis

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

April 25, 2018

GERALD DESMOND GRIFFIN, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          TERRY R. MEANS, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         On May 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[1] 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.)

         The appellate court set out the factual background of the case as follows:

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 him.
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 bullet holes.
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.

         II. ISSUES

         Petitioner 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.)

         III. RULE 5 STATEMENT

         Respondent 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, doc. 20.)

         IV. STANDARD OF REVIEW

         A § 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.

         Additionally, 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)[2]; 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).

         The 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).

         V. DISCUSSION

         A. Ineffective Assistance of Counsel

         A 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.

         In 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, 190 (2011)).

         Petitioner 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, doc. 24.)

         Counsel 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):

OVERVIEW
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 testified ...

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