United States District Court, N.D. Texas, Wichita Falls Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR., UNITED STATES MAGISTRATE JUDGE
the Court is Dale Thomas Burns'
(“Petitioner”) 28 U.S.C. § 2254 habeas
corpus petition (ECF No. 1) filed on February 21, 2018;
Respondent's Response in Opposition to Petitioner's
petition (ECF No. 11) filed on July 24, 2018; the
Administrative Record (ECF No. 14) filed on July 26, 2018;
and Petitioner's Traverse Brief in Support of his
petition (ECF No. 17) filed on September 24, 2018. After
considering the pleadings and applicable law, the undersigned
RECOMMENDS that United States District Judge
Reed O'Connor DENY Petitioner's
petition. (ECF No. 1).
was indicted for unlawfully possessing body armor. (ECF No.
14-11 at 5). At trial, the state offered evidence of two
prior felony convictions for the purpose of punishment
enhancement. (Id.). Petitioner pleaded true to the
first enhancement paragraph and not true to the second. (ECF
No. 14-20 at 5-6). The jury, however, found both enhancement
paragraphs true and assessed punishment at thirty-three years
of imprisonment. (ECF No. 14-11 at 83-84). The 46th District
Court of Hardeman County, Texas entered final judgment and
sentenced Petitioner accordingly. (Id.).
then filed a direct appeal to the Seventh Court of Appeals of
Texas, which affirmed his conviction on April 1, 2016.
Burns v. State of Texas, No. 07-15-00229-CR, 2016 WL
1391066, at *1 (Tex. App.-Amarillo Apr. 1, 2016, pet.
ref'd); (see also ECF No. 14-11 at 83-84).
Thereafter, Petitioner filed a petition for discretionary
review (“PDR”) in the Texas Court of Criminal
Appeals (“TCCA”), which refused the PDR on June
29, 2016. (ECF No. 14-10 at 1). Petitioner did not petition
the Supreme Court of the United States for a writ of
certiorari. (ECF No. 1 at 3).
14, 2017, Petitioner first filed an application for a state
writ of habeas corpus. (ECF No. 14-23 at 8-23). The 46th
District Court of Hardeman County, Texas denied the petition
and issued written findings of fact and conclusions of law.
(Id. at 26-27). On September 6, 2017, the TCCA
dismissed the petition for noncompliance with Texas Rule of
Appellate Procedure 73.1. (ECF No. 14-21 at 1). Petitioner,
however, filed a “Motion to Have Court Correct Clerical
Error, ” and the TCCA determined that the petition was
dismissed in error. Ex parte Burns, No. WR-87,
326-01, 2018 WL 3133968, at *1 (Tex. Crim. App. June 27,
2018); (see also ECF No. 14-22). The TCCA withdrew
its September 6, 2017 order and reconsidered Petitioner's
case on its own motion. Ex parte Burns, 2018 WL
3133968 at *1. The TCCA denied Petitioner's petition on
June 27, 2018 “based on the trial court's findings
of fact and conclusions of law as well as [its] independent
review of the entire record.” Id.
to the TCCA issuing its June 27, 2018 decision, Petitioner
filed a second state habeas petition on October 20, 2017.
(ECF No. 14-27 at 6). The 46th District Court of Hardeman
County, Texas again issued written findings of fact and
conclusions of law and dismissed the second petition on
November 16, 2017. (Id. at 15; ECF No. 14-28 at 1).
On January 10, 2018, the TCCA denied Petitioner's second
petition without written order based on the trial court's
findings. (ECF No. 14-24).
then filed a third state habeas petition on February 26,
2018. (See ECF Nos. 14-30, 14-31). On April 18,
2018, the TCCA dismissed the petition as subsequent pursuant
to Texas Code of Criminal Procedure Article 11.07 § 4(a)
- (c). (ECF No. 14-29).
filed the instant petition on February 21, 2018, alleging
that his Fourteenth Amendment due process rights were
violated because there was insufficient evidence to support
his conviction. (ECF No. 1 at 6-7). Specifically, he alleges
that the state did not prove that he knew it was illegal for
a felon to possess a bullet proof vest; that he possessed a
bullet proof vest; that he had a prior and final felony
conviction; and that the “purported vest” was in
fact “body armor.” (Id.). He also claims
that his Fourth Amendment rights were violated because the
audio recording admitted at his trial was obtained during a
custodial interrogation, and law enforcement officials had
not read his Miranda rights to him beforehand; and
that an expert witness did not verify that he was the speaker
on the recording. (Id.).
AEDPA Standard for § 2254 Habeas Cases
the Antiterrorism and Effective Death Penalty Act of 1996
a federal court may grant a state prisoner's application
for a writ of habeas corpus if the state-court adjudication
pursuant to which the prisoner is held 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.
Howes v. Fields, 565 U.S. 499, 505 (2012) (quotation
omitted) (quoting 28 U.S.C. § 2254(d)(1)).
[A] state court decision is contrary to . . . clearly
established [federal law] if the state court applies a rule
that contradicts the governing law set forth in [Supreme
Court] cases or if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different
from [its] precedent.
Lockyer v. Andrade, 538 U.S. 63, 73 (2003)
(quotation omitted). “It is an unreasonable application
of Supreme Court precedent ‘if the state court
identifies the correct governing legal rule from [the]
Court's cases but unreasonably applies it to the facts of
the particular state prisoner's case.'”
Salts v. Epps, 676 F.3d 468, 473-74 (5th Cir. 2012)