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Simms v. Davis

United States District Court, N.D. Texas

May 24, 2018

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Wisdom Lee Simms Jr., 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 having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.

         I. BACKGROUND

         On April 21, 2015, pursuant to a plea agreement, petitioner pleaded guilty in the 297th District Court, Tarrant County, Texas, No. 1384786D, to one count of robbery by threats and true to having a prior felony conviction and was sentenced to 20 years' imprisonment in TDCJ.[1] (SHR[2] 196-205, doc. 15-11.) Petitioner did not appeal the trial court's judgment of conviction but did seek postconviction state habeas relief by-filing a state habeas-corpus application, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (SHR 2-18, doc. 15-10 & Action Taken, doc. 10-1; O2SHR, Action Taken, doc. 10-3; O3SHR, Action Taken, doc. 10-10-54.) This federal petition followed.

         Petitioner's trial counsel summarized the facts of the case as follows:

On August 30, 2014, at 0018 hours, [petitioner] entered the 7-11 located at 13351 South Freeway in Fort Worth, Texas. [Petitioner] complained of muscle cramps and was directed to the pharmacy area of the store by a female clerk. [Petitioner] selected several items and approached the checkout register. [Petitioner] left the store stating he left his card in his car. [Petitioner] returned to the store with a black object wrapped in a green towel telling the clerk that the had a bad day. [Petitioner] told the clerk several times, "Don't make me hurt you. Hurry, I have a gun." Fearing for her life, the clerk gave [petitioner] the contents of the register. [Petitioner] instructed the clerk to go to the restroom and left the store in a Silver Dodge Avenger.
Detective K.D. Koralewski with the Fort Worth Police Department was assigned the case for follow-up investigation. Detective Koralewski retrieved the store surveillance footage from the robbery and prepared a bulletin with a still frame of [petitioner] and his vehicle and distributed to patrol officers.
On September 6, 2014, Fort Worth police located [petitioner] at the Oasis Motel. [Petitioner] was standing near a Silver Dodge Avenger. Officers obtained complete identification for [petitioner] and took photos of [petitioner] and his vehicle with a digital camera.
On September 8, 2014, Detective Koralewski prepared a six-person lineup containing [petitioner] and 5 other males with similar appearance and characteristics. Detective Koralewski presented the lineup to the female clerk and she identified [petitioner] as the person who robbed her.

(SHR 37-38, doc. 15-10.)

         II. ISSUES

         Petitioner raises four grounds for relief. In grounds one, two, and three, petitioner claims he received ineffective assistance of trial counsel because counsel-

(1) failed to request a competency evaluation;
(2) failed to investigate his long history of mental illness; and
(3) had a conflict of interest.

         In ground four, petitioner claims counsel's cumulative errors resulted in him being "sentenced unknowing and involuntary."[3](Pet. 6-7, doc. 1.)


         Respondent believes that petitioner has exhausted his state court remedies and that the petition is neither successive nor untimely. (Resp't's Answer 3, doc. 11.)


         A § 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. Harrington v, Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. § 2254(d)(1}-(2). Additionally, the statute reguires 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. It is the petitioner's burden to rebut the presumption of correctness through clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Finally, when the Texas Court of Criminal Appeals, the state's highest criminal court, denies relief on a state habeas-corpus application without written order, typically it is an adjudication on the merits, which is likewise entitled to this presumption. Richter, 562 U.S. at 100; Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997}. In such a situation, a federal court "should 'look through' the unexplained decision to the last related state-court decision providing" particular reasons, both legal and factual, "presume that the unexplained decision adopted the same reasoning, " and give appropriate deference to that decision. Wilson v. Sellers, __U.S. __, 138 S.Ct. 1188, 1191-92 (2018).

         V. DISCUSSION

         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 prevail on an ineffective assistance claim in the context of a guilty plea, a defendant must demonstrate that his plea was rendered unknowing or involuntary by showing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985); Smith v, Estelle, 711 F.2d 677, 682 (5th Cir. 1983); see also Strickland, 466 U.S. at 687. In assessing the reasonableness of counsel's representation, "counsel should be 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 690) .

         Further, by entering a knowing, intelligent and voluntary guilty plea, a defendant waives all nonjurisdictional defects in the proceedings preceding the plea, including all claims of ineffective assistance of counsel that do not attack the voluntariness of the guilty plea. Smith, 711 F.2d at 682; Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981). A guilty plea is knowing, voluntary and intelligent if done with sufficient awareness of the relevant circumstances and likely consequences surrounding the plea. Brady v. United States, 397 U.S. 742, 748 (1970). If a challenged guilty plea is knowing, voluntary and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995).

         In his first two grounds, petitioner asserts that trial counsel, Lesa Pamplin, was ineffective by failing to request a competency evaluation of him before trial and to investigate his long history of mental illness. He contends that on the day of trial, he was brought to court from a "MHMR special housing unit" where he was undergoing "intensive psycho analysis" (IPA); heavily medicated under the supervision of a doctor who had changed and increased his psychotropic medication; sleep- deprived, malnourished, glassy-eyed, disheveled, disoriented, and confused; and clothed in prison suicide garb. (Pet'r's Mem. 20, doc. 2.} He argues that these circumstances should have alerted counsel and raised a bona fide doubt as to his competence to stand trial. (Id.; Pet'r's Traverse 9-10, doc. 19.) Counsel filed an affidavit in the state habeas proceeding responding to petitioner's allegations, in relevant part, as follows (all spelling, grammatical, and/or punctuation errors are in the original):

Defense Counsel was originally appointed to represent [petitioner] on June 6, 2014, on a drug charge and again on September 15, 2014, after [petitioner] was charged with two robberies. On September 16, 2014, Defense Counsel filed 39.14 Motions to obtain discovery on the cases. Defense Counsel received discovery containing the injured parties' interviews, video surveillance of the hotel, still images, the store surveillance, and still photos from the 7-11.
On November 11, 2014, Counsel was present at [petitioner]'s consultation court setting. Assistant District Attorney Lisa Callahan was assigned to [petitioner]'s case. The State's initial offer to [petitioner] was Forty (40} years in [TDCJ]. [Petitioner]s criminal history is as follows:
Cause Number 8OCR4O99 - Attempted First Degree Rape - Twenty Years (20) Jury Trial
Cause Number 80CR4100 - Kidnapping - Thirty-Five Years (35} - Jury Trial
Cause Number 92CRS10656 - Common Law Robbery - Ten Years (10) - Plea
Cause Number 92CRS10657 - Common Law Robbery - Ten Years (10} - Plea
Cause Number 92CRS10658 - Common Law Robbery - Ten Years (10) - Plea
Cause Number 92CRS1807 - Common Law Robbery - Ten Years (10) - Plea
Cause Number 04CRS054297 Common Law Robbery -12-15 months - Plea
Cause Number 10CRS000527 - Felony Probation Violation - 8-10 ...

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