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Stone v. Davis

United States District Court, N.D. Texas, Amarillo Division

February 20, 2019

ROGER DUANE STONE, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

          LEE ANN RENO UNITED STATES MAGISTRATE JUDGE.

         Petitioner ROGER DUANE STONE has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody. For the reasons set forth below, petitioner's application for federal habeas corpus relief should be denied.

         I.

         PROCEDURAL HISTORY

         On October 4, 2012, in the 316th Judicial District Court of Hutchinson County, Texas, Petitioner was charged in a two-count Indictment with the 2nd degree felony offense of possession of four (4) grams or more but less than 200 grams of a controlled substance listed in Penalty Group 1 (methamphetamine) in violation of section 481.115(d) of the Texas Health and Safety Code, [1] and the 3rd degree felony offense of tampering with physical evidence in violation of section 37.09 of the Texas Penal Code. State v. Stone, Cause No. 10, 928 [ECF 11-2 at 10]. The Indictment did not contain an enhancement paragraph alleging a prior final felony conviction for purposes of enhancing punishment for the charged offenses. [ECF 11-2 at 10-11].

         On September 20, 2013, however, the State filed notice that it intended to seek enhancement of petitioner's punishment ranges for the charged offenses pursuant to section 12.42 of the Texas Penal Code by proving petitioner had been finally convicted of a felony prior to the commission of the current charged offenses. [ECF 11-2 at 24-26]. In its notice, the State indicated it intended to provide evidence that in June 2004 petitioner had been convicted of the 3rd degree felony offense of possession of a controlled substance for which he was assessed a 6-year sentence, thereby increasing petitioner's punishment range for the possession offense to that of a 1st degree felony offense (5 to 99 years or life), and also increasing the punishment range for the tampering offense to that of a 2nd degree felony offense (2 to 20 years). [ECF 11-2 at 25]. The State additionally filed its notice of intent to use other extraneous offenses and other acts of misconduct of petitioner during the punishment phase of petitioner's trial which listed numerous other alleged bad acts of petitioner. [ECF 11-3 at 16-18].

         On October 7, 2013, petitioner was tried before jury. During the trial, evidence was introduced that reflected petitioner pushed the investigating officer to the ground, the officer sustained minor injuries, petitioner fled on foot, and during the foot chase attempted to dispose of several plastic baggies containing methamphetamine and marijuana by throwing them in residential yards. The jury found petitioner guilty of both offenses as charged and, after petitioner's plea of true to the 2004 possession conviction/6-year sentence, found the State had proven the punishment enhancement allegation to be true. [ECF 11-4 at 14-15].

         On October 8, 2013, at the punishment phase of the trial, the State presented evidence that petitioner had also been:

convicted of the Class A misdemeanor offense of possession of marijuana in a drug free zone and sentenced to 30 days confinement in county jail in 2011;
convicted of the state jail felony offense of evading arrest with a vehicle and sentenced to 14 months in state jail in 2010;
convicted of the state jail felony offense of possession of a controlled substance and sentenced to 12 months in state jail in 2007;
convicted of the state jail felony offense of forgery and, after revocation of a 3-year probated sentence, sentenced to two years in state jail in 1998; and
convicted of the Class A misdemeanor offense of resisting arrest by force and sentenced to 30 days confinement in county jail in 1996.

[ECF 11-10 at 194-96, 210-11, 217; ECF 11-13 at 9; ECF 11-14 at 1-13; ECF 11-15 at 1-8]. The State further presented testimony that the amount of methamphetamine petitioner possessed was a “large amount” that would typically be used in more than one sitting. [ECF 11-10 at 201-02].

         Petitioner called his sister, his brother and a daughter to testify at the punishment phase as to his 20-year drug problem, his desire and attempts to get help for his addiction, his loving, kind, gentle, caring and helpful nature, his honesty and trustworthiness, his available support system when he is not in prison, and their belief that petitioner needs rehabilitation rather than another prison sentence. [ECF 11-10 at 220-50]. Despite this testimony, the jury, presented with the enhanced punishment ranges, the evidence of petitioner's criminal history and his current offenses, sentenced petitioner to a term of seventy-five (75) years imprisonment for the 2nd degree possession of a controlled substance offense, enhanced, and two (2) years imprisonment for the 3rd degree ...


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