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 writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by Petitioner, Derek Kyle
Auvenshine, 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
29, 2015, in the 415th District Court, Parker County, Texas,
Nos. CR14-0087, CR14-0088, CR14-0089, and CR15-0236, a jury
found Petitioner guilty on two counts of aggravated assault
of a peace officer with a deadly weapon, one count of
unlawful possession of a firearm by a felon, and one count of
evading arrest or detention with a vehicle. Subsequently,
Petitioner pleaded true to sentence-enhancement allegations
in each indictment, and the jury assessed his punishment at
forty-five years' imprisonment for each aggravated
assault, twenty-seven years' imprisonment for unlawful
possession of a firearm, and thirty-five years'
imprisonment for evading arrest. (Clerk's R. 127, doc.
13-2; Clerk's R. 111, doc. 13-19; Clerk's R. 111,
doc. 14-7; Clerk's R. 102, doc. 14-11.) Petitioner
appealed his convictions, but the Seventh District Court of
Appeals of Texas affirmed the trial court's judgments.
(Mem. Op. 11, doc. 13-17.) He did not seek further direct
review but did file four post-conviction state habeas-corpus
applications challenging his convictions, which were denied
by the Texas Court of Criminal Appeals without written order.
(Action Taken, docs. 14-15, 14-17, 14-19 & 14-21.) This
federal petition for habeas relief followed.
state appellate court summarized the facts of the case as
Acting on a tip from the Fort Worth Police Department
regarding the whereabouts of Adam Crooks, the White
Settlement Police Department conducted surveillance on the
house at which he was supposed to be located and confirmed
the presence of two men and a green Jeep Grand Cherokee at
that location. Many of the White Settlement police officers
were familiar with Crooks, who was wanted that day in January
2014 for parole violation. The two men got in the Jeep and
left the residence, passing officer William
“Bill” Ross located in a nearby parking lot. Ross
announced by radio that the driver of the Jeep matched the
description given of Crooks: short, dark hair and a goatee.
As was planned, Ross attempted a traffic stop. As was feared,
the Jeep fled from Ross, embarking on what would become
high-speed pursuit covering two counties and involving
several White Settlement police units.
Having reached speeds of approximately 120 miles per hour,
the Jeep exited the freeway onto a farm-to-market road,
having left Tarrant County and entered into Parker County.
The Jeep tried to make a right-hand turn too fast, nearly
flipped over, and spun around, such that the Jeep was then
facing Ross's vehicle. At that point, Ross, who had
remained the lead unit in the pursuit, came upon the Jeep,
now stalled as the driver apparently attempted to reorient
the vehicle. With the Jeep now facing Ross's vehicle,
Ross drove toward the Jeep's driver side. As Ross's
vehicle and the Jeep met, the driver of the Jeep pointed a
gun out the window toward Ross. Ross maneuvered his vehicle
so as to provide him cover from expected gunfire, got his
rifle, exited the vehicle, and began firing toward the Jeep
as it began to pull away from the scene.
Following shortly behind Ross was Corporal Joshua Dacus, who
saw the gun being pointed at Ross and who, it appears,
collided with the Jeep and then approached its passenger
side. At that point, Dacus saw [Petitioner] reach across the
cabin and point the gun at him. Dacus was also able to see
that Crooks was the passenger. The driver was able to
maneuver the Jeep away from the gunfire and other arriving
police units and continue flight for a short while. The Jeep
eventually veered off the road, hit an embankment, flipped
rear over front, and landed on its passenger side. The
driver, who, like Crooks, also had short, dark hair and a
goatee and who was later identified as [Petitioner], crawled
out of the vehicle and took off over a hill. Ross, who had
gotten back into his car after his first encounter with the
Jeep and arrived at the scene of the crash after other
officers, again exited his vehicle and fired his rifle,
hitting [Petitioner] and effectively ending the chase.
Medical care was summoned for [Petitioner]. The passenger,
Crooks, was arrested without further incident. A search of
the Jeep found a variety of incriminating items, including a
(Mem. Op. 2-3, doc. 13-17.)
claims in four grounds that he received ineffective
assistance of counsel at trial and on appeal (grounds one and
three); that the state engaged in prosecutorial misconduct
(ground two); and that the trial court failed to conduct
impartial court proceedings (ground four). (Pet. 6-7, doc.
RULE 5 STATEMENT
believes that Petitioner has sufficiently exhausted his
state-court remedies as to his claims and that the petition
is neither time-barred nor subject to the successive-petition
bar. (Resp't's Answer 6, doc. 12.)
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
§ 2254 habeas petition is governed by the heightened
standard of review provided for in 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 established 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. See 28 U.S.C. § 2254(d)(1)-(2);
Harrington v. Richter,562 U.S. 86, 100 (2011). This
standard is difficult ...