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Perry v. Davis

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

May 31, 2018

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



         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Michael Wayne Perry, 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 July 14, 2014, in the 297th Judicial District Court, Tarrant County, Texas, No. 1302260D, having refused the state's plea offer of 10 years' confinement, Petitioner entered an open plea of guilty to a jury to one count of robbery and true to the repeat-offender notice in the indictment. (Clerk's R. 54, 68, doc. 15-7.) On July 16, 2014, following his trial on punishment, the jury found him guilty of the offense and true to the repeat- offender notice and assessed his punishment at 40 years' confinement. (Id.) His conviction was affirmed on appeal and his petition for discretionary review was refused by the Texas Court of Criminal Appeals. (Docket Sheet 1-2, doc. 15-2.) Petitioner also filed two relevant state habeas-corpus applications challenging his conviction, the first of which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court and the second of which was dismissed as a subsequent petition. (Action Taken, docs. 15-20 & 15-28.) This federal habeas petition followed.

         During the trial on punishment, testimony reflected that N.S. left a Kroger store in Arlington, Texas, on the morning of October 14, 2012. As she approached her car, she observed a man, later identified as Petitioner, pacing near a tannish-colored car with the trunk open and the hazard lights on. N.S. loaded her groceries and returned the shopping cart. As she was returning to her car, Petitioner approached her, told her that his car had broken down, and asked if she had a cell phone. N.S., who became frightened, got into her car and as she was putting her purse on the passenger seat, Petitioner placed his arm across her neck, said “bitch, don't say anything, ” and took her purse. N.S. was able to give a description of the robber and the tannish-colored car and possible license plate number of the car to the police. Through a GPS locator on N.S.'s phone, Petitioner was located and detained at a gas station, with N.S.'s belongings in his possession. N.S. positively identified Petitioner as her robber in a “field showup.” The parties stipulated to evidence of Petitioner's lengthy criminal history, which included three prior felony-theft convictions. (Reporter's R., vol. 6, State's Ex. 16, doc. 15-18.) Petitioner did not testify or call any witnesses on his behalf.

         II. Issues

         In three grounds for relief, Petitioner claims that (1) the trial court erred by overruling his trial counsel's objection to the state's closing argument inviting the jury to speculate as to “imaginary witness testimony”; (2) he was denied effective assistance of counsel by trial counsel's failure to pursue and present any mitigating evidence during trial; and (3) he was denied due process of law and his right to a fair trial under the Sixth Amendment by trial counsel's failure to “communicate all legal matters” to him before trial. (Pet. 6-7, doc. 1.)


         Respondent believes that Petitioner has exhausted his state-court remedies as to grounds one and two but that the third ground is unexhausted but procedurally barred from federal review. She does not assert that the petition is barred by the statute of limitations or subject to the successive-petition bar. (Resp't's Answer 5, doc. 13.)


         A § 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 AEDPA, 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 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. Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001). 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, 399 (2000).

         Additionally, 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. Procedural Default and Exhaustion

         Under his first ground, Petitioner claims that he was denied due process as a result of the trial court's overruling of his counsel's objection to the state's closing argument inviting the jury to speculate as to “imaginary witness testimony.” (Pet. 6, doc. 1.) Respondent asserts that this claim was forfeited in state court because no contemporaneous objection was raised at trial, and, thus, the claim is procedurally barred from federal habeas review. (Resp't's Answer 9-11, doc. 13.) Under the procedural-default doctrine, a federal habeas court will not review a claim if the last state court to consider the claim expressly and unambiguously based its denial of relief on an independent and adequate state procedural default. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).

         In overruling the claim on appeal, the state appellate court, replying solely on state law, provided:

[Petitioner] argues that the trial court committed reversible error by overruling his objection to the State's closing argument, “which invited the jurors to speculate as to imaginary witnesses that the defense might have, but failed, to call to testify regarding his character when no evidence was presented by either the [S]tate or defense that the witnesses actually existed or could have been called.” Generally, in order to preserve a complaint related to jury argument error, the complaining party must make timely and specific objection to the jury argument.

         At trial, the following exchange occurred:

[STATE]: This has been a very short trial. We've got some pictures, we've got testimony. But you've seen the photo album that we brought to you. And I told you in jury selection guilt and innocence--or rather punishment phase of a trial is an opportunity for both sides to bring you anything they want. Have you heard anything good about this defendant?
[DEFENSE]: Your Honor, we will object to that argument. It's a comment on the defendant's election not to testify.
THE COURT: I'm going to overrule that particular objection.
[STATE]: Have you heard from an employer saying he's ever worked an honest day in his life? Fellow church member to say he's a good person? Anybody? If anybody came to you and said you've got a week, you need to come up with some people to come up with something good to say about you, could you come up with one?
Although [Petitioner]'s trial objection was that the argument was a comment on his election not to testify, on appeal he contends that the prosecutor's argument was outside the record and encouraged the jury to speculate. It is well established that, in order to preserve a complaint for appellate review, the objection at trial must comport with the complaint raised on appeal. In the case now before this court, we cannot conclude that the trial objection that the argument is a comment on [Petitioner]'s decision not to testify comports with the complaint on appeal that the argument is outside the record and encourages the jury to speculate.

         (Mem. Op. 2-3, doc. 15-3 (citations omitted).)

         Clearly, the state court's decision rested on a state-law procedural default independent of Petitioner's claim. And, Texas's contemporaneous-objection rule is an adequate state procedural bar to federal habeas review. See Amos v. Scott, 61 F.3d 333, 341 (5th Cir. 1995). Thus, the procedural default in state court precludes federal habeas review of the claim. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002).

         A petitioner may overcome a state procedural bar by demonstrating either cause for the procedural default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claim will result in a fundamental miscarriage of justice--i.e., that he is actually innocent of the offense for which he was convicted. Coleman, 501 U.S. at 750.

         In an effort to overcome the procedural default, Petitioner argues that the state court's determination is contrary to clearly established federal law as determined by the United States Supreme Court or resulted in a decision that is based on an unreasonable determination fo the facts in light of the evidence presented at trial; that counsel made a timely and specific objection in compliance with Texas Rule of Appellate Procedure 33.1(a)(1); and that this Court's failure to consider the claim on the merits will result in a fundamental miscarriage of justice. (Pet'r's Reply 5-6, doc. 20.) The Court, however, finds no legal authority or factual support in the record for Petitioner's first argument. And, a state court's use of procedural bars is entitled to federal deference if strictly or regularly followed, as is the bar in this case. See Hathorn v. Lovorn, 457 U.S. 255, 263 (1982). Finally, a petitioner seeking to invoke the actual-innocence exception to the procedural-default rule must produce new reliable evidence that was not presented at trial and must show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of the new evidence. See House v. Bell, 547 U.S. 518, 537 (2006); Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Petitioner presents no such evidence. Accordingly, Petitioner's first claim is procedurally barred from this Court's review.

         Under his third ground, Petitioner claims that he was denied his Sixth Amendment right to a fair trial because counsel failed to “communicate all legal matters [a 10-year plea offer and its date of expiration] prior to the most critical stage of the trial, ‘pre-trial'” and forced him into a trial. (Id. at 7; Pet'r's Reply 9-12, doc. 20.) Respondent asserts that Petitioner raises this claim for the first time in this federal petition and that the claim is unexhausted and procedurally barred from federal habeas review under the Texas abuse-of-the-writ doctrine.

         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 may 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).

         While it is true that Petitioner did not specifically raise a Sixth Amendment right-to-a-fair-trial claim based on counsel's failure to “communicate all legal matters” before trial in state court, the Amendment requires effective assistance of counsel at critical stages of a criminal proceeding, including pretrial stages “in which defendants cannot be presumed to make critical decisions without counsel's advice.” See Lefler v. Cooper, 566 U.S. 156, 165 (2012) (holding that defendant's Sixth Amendment right to effective counsel was violated where counsel failed to alert client that a plea offer had been extended and client was subsequently convicted at trial and sentenced and “received a sentence harsher than that offered in the rejected plea bargain”). Thus, Petitioner's Sixth Amendment claim is consistent with the right to effective assistance of counsel during pretrial proceedings. Because Petitioner raised a substantively equivalent claim in the context of an ineffective-assistance-of-counsel claim in his state habeas application, the Court believes that the instant claim was sufficiently exhausted in state court and addresses it below.

         B. Effective Assistance of Counsel

         A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. Const. amend. VI, XIV; 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. 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.

         The Supreme Court set out in Richter the manner in which a federal court is to consider an ineffective-assistance-of-counsel claim raised in a ...

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