Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burns v. Director TDCJ - CID

United States District Court, N.D. Texas, Wichita Falls Division

March 6, 2019

DALE THOMAS BURNS, Petitioner,
v.
DIRECTOR TDCJ - CID, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR., UNITED STATES MAGISTRATE JUDGE

         Before 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).

         I. FACTUAL BACKGROUND

         Petitioner 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.).

         Petitioner 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).

         On July 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.

         Prior 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).

         Petitioner 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).

         Petitioner 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.).

         II. LEGAL STANDARD

         A. AEDPA Standard for § 2254 Habeas Cases

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

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) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.