United States District Court, N.D. Texas, Wichita Falls Division
CLIFTON DEWAYNE HARVIN, TDCJ No. 01235629, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
ORDER ACCEPTING IN PART THE FINDINGS, CONCLUSIONS,
AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE
BARBARA M. G. LYNN JUDGE
making an independent review of the pleadings, files, and
records in this case, the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge dated
March 1, 2018 (ECF No. 44), and Petitioner Clifton
Harvin's objections (ECF No. 45) dated March 20, 2018, to
which no responses were filed, the Court finds that the
Findings, Conclusions, and Recommendation of the Magistrate
Judge should be accepted in part with the following
seeks habeas relief based on ineffective assistance of trial
counsel and ineffective assistance of counsel on appeal. ECF
Nos. 4 and 37. The Magistrate Judge recommended denying
Petitioner's Petition on all requested grounds for
relief. ECF No. 44. Petitioner objects to the Magistrate
Judge's recommendation on several grounds, including the
Magistrate Judge's summary of facts; the denial of
Petitioner's ineffective assistance of counsel claim for
failing to move to disqualify Jack McGaughey
(“McGaughey”), failing to move to recuse Judge
Towery (“Towery”), and failing to file discovery
motions and for not presenting any witnesses; and the denial
of Petitioner's request for evidentiary hearing based on
his claims of ineffective assistance of counsel.
reflected in the Magistrate Judge's Findings,
Conclusions, and Recommendation, in deciding whether
Petitioner has met his burden under 28 U.S.C. § 2254(d),
federal courts give deference to the state court's
findings unless such findings violate the “unreasonable
application” clause of 28 U.S.C. § 2254(d)(2). The
“unreasonable application” clause concerns only
questions of fact. Hill v. Johnson, 210 F.3d 481,
485 (5th Cir. 2000). Petitioner objects to the Magistrate
Judge's adoption of the state court's factual
summary. However, the resolution of factual issues by the
state court is afforded a presumption of correctness and will
not be disturbed unless the habeas petitioner rebuts the
presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 550
(1981). Absent such evidence, the presumption of correctness
is applied provided that the state court findings are
evidenced in writing, issued after a hearing on the merits,
and are fairly supported by the record. E.g. Burden v.
Zant, 498 U.S. 433, 436-37 (1991); Williams v.
Scott, 35 F.3d 159, 161 (5th Cir. 1994); 28 U.S.C.
§ 2254(d). The Magistrate Judge's adoption of the
state court's findings of fact was proper under 28 U.S.C.
§ 2254(e)(1), because Petitioner has failed to rebut the
presumption of correctness afforded to state court factual
findings by clear and convincing evidence. Therefore,
Petitioner's objection on this ground is overruled.
also objects to the Magistrate Judge's denial of his
ineffective assistance of counsel claims arising from his
counsel's failure to move to disqualify McGaughey.
Petitioner makes multiple objections on this ground.
Petitioner objects to the finding that he had previously
retained McGaughey as his lawyer for purposes of a polygraph
examination around May 1995, as he was scheduled for the
polygraph examination in March 1995. ECF No. 45 at 7-10.
Based on a review of the administrative record, evidence
supports Petitioner's argument that he was scheduled to
attend a polygraph examination in March 1995. ECF No. 23-20
at 84. Thus, the Court does not accept the finding that the
polygraph examination was scheduled for May 1995, and
Petitioner's objection is sustained on this ground.
further argues that the Magistrate Judge was incorrect in
finding that he retained McGaughey to represent him for the
limited purpose of advising him concerning the proposed
polygraph examination, as it is “not possible that this
attorney was retained for the purpose of a polygraph and then
to somehow assume specific case facts were not discussed with
the attorney.” ECF No. 45 at 11. The Court of Criminal
Appeals found that no attorney-client relationship existed
between Petitioner and McGaughey, based upon the evidence
presented to that court. See Ex parte Harvin, No.
WR-72, 328-03, 2016 WL 5400892, at *19 (Tex. Crim. App. Sept.
21, 2016). Thus, Petitioner has the burden of presenting
clear and convincing evidence that McGaughey represented him
in the underlying criminal proceeding such that his trial
counsel was ineffective in failing to move to disqualify
McGaughey in the probation revocation proceedings. While
Petitioner relies on Ex Parte Spain and Landers
v. State in arguing that McGaughey should have been
statutorily disqualified under Texas law, these cases are
inapposite. In Spain, the statutory disqualification
applied due to the attorney's representation of the
defendant at the plea-bargaining stage. Ex Parte
Spain, 589 S.W.2d 132, 134 (Tex. Crim. App. 1979). In
Landers, the court found that a prosecutor who had
previously represented a defendant in a substantially related
matter to defendant's case at issue did not violate the
defendant's right to due process, and thus the prosecutor
was not obligated to disqualify himself from the case.
Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim.
App. 2008). Furthermore, in a recent Texas Court of Criminal
Appeals case, the court denied without written opinion a
petitioner's application for writ of habeas corpus that
involved a prosecutor who had previously represented the
petitioner in the same criminal matter as defense counsel.
Ex parte Rodriguez, __ S.W.3d__, 2018 WL 1101663
(Tex. Crim. App. Feb. 28, 2018). Petitioner has failed to
present clear and convincing evidence that McGaughey
represented him in the underlying criminal proceeding or
established the existence of an attorney-client relationship
such that statutory disqualification would apply in this
case. Therefore, the Court does not accept the Magistrate
Judge's finding that Petitioner actually retained
McGaughey as counsel based on the analysis above.
Petitioner's objection on this ground is overruled.
also objects to the Magistrate Judge's denial of his
ineffective assistance of trial counsel claims concerning his
counsel's failure to move to recuse Judge Towery.
Petitioner argues that Judge Towery did not voluntarily
recuse himself and that Judge Towery's ultimate recusal
is evidence of his counsel's ineffective assistance. ECF
No. 45 at 28-30. Specifically, Petitioner argues that Judge
Towery was required to recuse himself because Petitioner
filed a writ of mandamus application challenging the
judge's action in the case. ECF No. 45 at 26-27. The
Court of Appeals for the Second District of Texas issued an
Order on September 25, 2009, requiring the state to file a
response to Petitioner's application for a writ of
mandamus by October 5, 2009. ECF No. 23-20 at 155-156. Judge
Towery issued an Order of Recusal on October 1, 2009. ECF No.
23-20 at 158. Thus, Judge Towery did voluntarily recuse
himself without direction or written order from the Court of
Appeals. United States v. Couch, 896 F.2d 78, 81-82
(5th Cir. 1990). Petitioner makes only conclusory allegations
that “had he not filed the writ of mandamus the Judge
would have continued his illegal actions in this case.”
ECF No. 45 at 27. A district court need not consider
“[f]rivolous, conclusive, or general objections,
” such as those made on this point. Battle v. U.S.
Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987)
(quoting Nettles v. Wainwright, 677 F.2d 404, 410
n.8 (5th Cir.1982), overruled on other grounds by
Douglass v. United States Auto. Ass'n, 79 F.3d 1415
(5th Cir. 1996)). Petitioner's objections are overruled
on these grounds.
objects to the Magistrate Judge's finding that his
ineffective of assistance of counsel claims involving the
failure to file discovery motions and present witnesses are
conclusory. ECF No. 45 at 33-37. Petitioner argues that an
evidentiary hearing is necessary because his counsel filed a
letter with the state requesting certain documents that
ultimately were not turned over. ECF No. 45 at 34. Petitioner
also argues that no competent attorney who had been denied
all of the evidence used to revoke his probation would fail
to file a discovery motion during the punishment phase of the
proceedings. Id. Petitioner's statements are
conclusory, and the Fifth Circuit has repeatedly held that
the non-filing of discovery motions and failure to call
witnesses in criminal cases do not constitute ineffective
assistance of counsel. See Smith v. Maggio, 696 F.2d
365, 367 (5th Cir. 1983) (“Counsel had no duty to file
pretrial motions, because the prosecutor established an open
file policy that made the filing of discovery motions or
Brady requests pointless.”); United States
v. Lewis, 786 F.2d 1278, 1283 (5th Cir. 1986) (stating
that a defendant must identify evidence that would have been
produced by further investigation, and that such evidence
would be “sufficient to undermine confidence in the
outcome of the trial”). Thus, Petitioner's
objections on these grounds are overruled.
Petitioner summarily objects to the Magistrate Judge's
denial of his ineffective assistance of counsel on appeal
claim by stating his counsel's “representation from
start to finish was flawed and the best he can do was say he
had [sic] done more at punishment. This is cumulative effect
and Petitioner respectfully objects[.]” ECF No. 45 at
38. A party's objections must specifically identify those
findings or recommendations that the party wishes to have the
district court consider. Thomas v. Arn, 474 U.S.
140, 151 (1985). The Petitioner failed to do so. Thus, the
Court need not consider Petitioner's conclusive and
general objections on this ground.
objects to the denial of his request for habeas relief on
multiple other grounds. The Court finds that these objections
are conclusory, fail to identify specific errors of fact or
law in the Magistrate Judge's Findings, Conclusions, and
Recommendation, and are substantively related to the
objections discussed above. As such, the Petitioner's
remaining objections are overruled. The Court finds that the
Magistrate Judge's Findings, Conclusions, and
Recommendation in all other aspects are supported by the
record and applicable law.
Court finds that Petitioner has failed to establish that the
state court's adjudication of his claims 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.
See 28 U.S.C. § 2254(d). Petitioner has further
failed to demonstrate that the state court's decision was
based upon an unreasonable determination of the facts in
light of the evidence presented in the state court
proceedings. Williams v. Taylor, 529 U.S. 362,
412-13 (2000); Chambers v. Johnson, 218 F.3d 360,
363 (5th Cir. 2000). Having reviewed the petition, file,
record, the Magistrate Judge's Findings, Conclusions, and
Recommendation, and Petitioner's objections in this case,
the Court determines that the Magistrate Judge's
Findings, Conclusions, and Recommendation are correct, with
the sole exceptions being the Magistrate Judge's
determination regarding the date of Petitioner's
scheduled polygraph examination in 1995 and the finding that
Petitioner retained McGaughey as counsel. While the Court
does not accept those two findings as explained above, the
Magistrate Judge's ultimate conclusion does not rest on