United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR 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, Rodney
Ricketts, a state prisoner confined in the Correctional
Institutions Division of the Texas Department of Criminal
Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent. After considering the pleadings and relief sought
by Petitioner, the Court has concluded that the petition
should be denied.
7, 2013, in Criminal District Court Number Four, Tarrant
County, Texas, a jury found Petitioner guilty of aggregate
theft of the value of $20, 000 or more but less than $100,
000, between January 19, 2011, and October 22, 2011.
Clerk's R. 172, ECF No. 12-9. The jury found the
habitual-offender notice in the indictment, alleging three
prior felony convictions out of North Carolina and a
third-degree-felony conviction out of Harris County, Texas,
true and assessed his punishment at 49 years'
imprisonment in TDCJ. Id. at 180. Petitioner's
conviction was affirmed on appeal and the Texas Court of
Criminal Appeals refused his petition for discretionary
review. Petitioner did not seek writ of certiorari or state
habeas-corpus relief. Pet. 3, ECF No. 1; Docket Sheet, ECF
No. 11-2. This federal habeas petition followed.
appellate court set out the factual background of the case as
In October 2011, Bedford police officer Miles McLain
responded to an activated security alarm at a Subway
restaurant. Upon arrival, Officer McLain saw that the door to
the store was open and a light was on. Officer McLain heard a
loud drilling noise coming from inside the shop. After
calling for back-up, Officer McLain hid behind a pillar
outside the front of the store. As [Petitioner] left the
store, Officer McLain ordered him to the ground and arrested
In the ensuing investigation, the police connected
[Petitioner] to a string of twenty-six burglaries beginning
in January 2011. Although the damage varied by location, the
store owners suffered a variety of losses including property
damage, theft of electronics, theft of tools, drilled safes,
stolen cash, and the removal of several books of Texas
Department of Public Safety inspection stickers.
Mem. Op. 2-3, ECF No. 11-3.
grounds for relief, Petitioner claims that the evidence at
trial was insufficient to prove the essential elements of the
offense; he received ineffective assistance of counsel; and
the judgment is void due to an illegal sentence. Pet. 6-7,
ECF No. 1.
RULE 5 STATEMENT
motion to dismiss the petition, Respondent asserted that the
petition should be dismissed without prejudice as a mixed
petition. Resp't's Mot. to Dismiss 6, ECF No. 10.
That motion and Petitioner's request for a stay, so he
could exhaust his unexhausted claims in state court, were
denied. Order, ECF No. 17. Respondent does not
believe that the petition is barred by successiveness and
reserved the right to challenge Petitioner's claims on
the merits and the timeliness of the petition.
Resp't's Mot. to Dismiss 3, ECF No. 10. Following the
Court's denial of her motion to dismiss, however,
Respondent has not filed any further response.
§ 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 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 and
“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.
The petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S.
322, 340 (2003); Williams v. Taylor, 529 U.S. 362,
Sufficiency of the Evidence
his first ground, Petitioner claims “[t]he evidence
presented by the prosecution, at trial, was constitutionally
insufficient to prove the essential elements of the
crime.” Pet. 6, ECF No. 1. On direct appeal, Petitioner
challenged only the sufficiency of the evidence on the
element of value, based on the fact that “in several
instances the property owners testified to the replacement
cost of the stolen items without first attempting to
ascertain the fair market value near the time of the
theft.” Appellant's Br. 9, doc. 12-10. To the
extent Petitioner attempts to rely on new legal or factual
theories in this federal petition for the first
time-i.e., that the evidence is insufficient to
prove other elements of the offense, the claim is unexhausted
for purposes of federal habeas review. Petitioners seeking
habeas-corpus relief under § 2254 are required to
exhaust all claims in state court before requesting federal
collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v.
Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion
requirement is satisfied when the substance of the federal
habeas claim has been fairly presented to the highest court
of the state. O'Sullivan v. Boerckel, 526 U.S.
838, 842-48 (1999); Fisher, 169 F.3d at 302;
Carter v. Estelle, 677 F.2d 427, 443 (5th Cir.
1982). In Texas, the highest state court for criminal matters
is the Texas Court of Criminal Appeals. Richardson v.
Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985).
Therefore, a Texas prisoner can satisfy the exhaustion
requirement by presenting both the factual and legal
substance of a claim to the Texas Court of Criminal Appeals
in either a petition for discretionary review or a state
habeas-corpus proceeding pursuant to article 11.07 of the
Texas Code of Criminal Procedure in a procedurally proper
manner. See Tex. Code Crim. Proc. Ann. art. 11.07
(West 2015); Depuy v. Butler, 837 F.2d 699, 702 (5th
Cir. 1988). Because Petitioner raised only a
sufficiency-of-the-evidence claim regarding the element of
value on direct appeal, the claim is addressed only to that
courts have extremely limited habeas review of claims based
on the sufficiency of the evidence, and the standard for
reviewing such claims is supplied by Jackson v.
Virginia, 443 U.S. 307 (1979). In Jackson, the
United States Supreme Court held that the correct standard of
review when a state prisoner challenges the sufficiency of
the evidence in a federal habeas-corpus proceeding is
“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Id. at 319. Under
Jackson, courts view any required credibility
determinations in the light most favorable to the guilty
verdict. United States v. Wise, 221 F.3d 140, 154
(5th Cir. 2000). Determining the weight and credibility of
the evidence is within the sole province of the jury.
United States v. Martinez, 975 F.2d 159,
161 (5th Cir. 1992). Courts do not second-guess the weight or
credibility given the evidence. United States v.
Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).
Further, where a state appellate court has conducted a
thoughtful review of the evidence, its determination is
entitled to great deference. Callins v. Collins, 998
F.2d 269, 276 (5th Cir. 1993).
the Jackson standard and relevant state law, the
appellate court addressed the claim as follows:
To obtain a third-degree-felony theft conviction, the State
needed to prove that the total value of property stolen
equaled or exceeded $20, 000. Property includes any tangible
personal property or any document, including money, which
embodies something of value. On review, we must give proper
deference to the valuation assigned by the trier of fact. As
such, we will reverse only if the evidence shows that no
rational jury could ...