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Gonzales v. Davis

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

March 19, 2019

JOSEPH LEWIS GONZALES, 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

          LEE ANN RENO UNITED STATES MAGISTRATE JUDGE

         Petitioner JOSEPH LEWIS GONZALES has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his conviction out of the 181st Judicial District Court of Potter County, Texas, for the felony offense of possession of a controlled substance and the resultant 15-year sentence. For the reasons set forth below, petitioner's application for federal habeas corpus relief should be DENIED.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         On October 15, 2014, petitioner was charged by Indictment with the 3rd degree felony offense of possession of a controlled substance in violation of section 481.115(c) of the Texas Health and Safety Code. State v. Gonzales, Cause No. 68, 522-B. [ECF 16-7 at 20; 35-2 at 67]. Specifically, it was alleged that on or about January 27, 2014, petitioner:

[D]id then and there, intentionally or knowingly possess a controlled substance, namely methamphetamine, in an amount of one gram or more but less than four grams.

[Id.]. The Indictment also alleged two (2) prior final felony convictions for purposes of enhancing petitioner's punishment pursuant to section 12.42(d) of the Texas Penal Code. [Id.].

         On December 23, 2014, petitioner, represented by appointed counsel, filed a motion to suppress alleging evidence against him was obtained as the result of an unconstitutional search and seizure in violation of his Fourth Amendment rights. [ECF 16-7 at 59-61]. On January 12, 2015, after an evidentiary hearing, the state trial court denied petitioner's suppression motion indicating he “personally view[ed]” the contact between petitioner and law enforcement as a consensual encounter rather than as the result of the officers conducting a traffic stop, and that the nearly contemporaneous search of petitioner's person (which resulted in the discovery of the methamphetamine) was consensual. [ECF 16-9 at 185].

         Later that same day, January 12, 2015, after the state waived the second punishment enhancement paragraph, petitioner pled guilty to the possession charge and true to the first enhancement paragraph pursuant to a plea agreement. [ECF 16-7 at 70-77]. The trial court accepted petitioner's pleas, found petitioner guilty of the charged offense, enhanced, as alleged in the Indictment and, pursuant to the punishment recommendation, assessed petitioner's punishment at fifteen (15) years imprisonment in the Texas Department of Criminal Justice, Correctional Institutions Division. [ECF 16-9 at 186-194]. The trial court thereafter entered a corresponding Judgment of Conviction. [ECF 16-7 at 79-8035-2 at 69-70].

         Petitioner, represented by new appointed appellate counsel, filed a direct appeal of his conviction to the Seventh Court of Appeals asserting the trial court abused its discretion and reversibly erred in denying his motion to suppress evidence. Petitioner specifically argued the evidence against him should have been suppressed because the contact between petitioner and police was not a consensual encounter because (1) said contact did not occur in a public place, and (2) even if the area was considered a public place, the show of authority by the police rendered the contact an impermissible investigative detention rather than a consensual encounter. Gonzales v. State, No. 07-15-00039-CR. [ECF 16-2].[1]

         On November 30, 2015, the state intermediate appellate court affirmed the trial court's judgment. The appellate court initially noted that without findings of fact and conclusions of law from the trial court and no explicit explanation for the trial court's suppression ruling, the court would affirm the underlying court's ruling if there was reasonable support in the record for the ruling and the ruling was correct on any applicable theory of law. The appellate court then found the record demonstrated the following: the supervising officer testified he personally saw petitioner commit a traffic violation; doing so gave the officer probable cause to detain petitioner; the supervising officer and two other officers contacted petitioner and obtained his consent to search his person; and this search yielded the contraband petitioner sought to suppress. The intermediate appellate court concluded that based on this state of the record, it was “unable to say the trial court clearly abused its discretion by failing to sustain [petitioner's] motion to suppress.” [ECF 16-4, 35-2 at 72-78].

         Petitioner sought review of the intermediate appellate court's opinion by filing a petition for discretionary review, together with a motion for an extension of time to file, with the Texas Court of Criminal Appeals. Gonzales v. State, No. PD-0084-16. [ECF 17-2; 17-3]. On January 27, 2016, the Court of Criminal Appeals dismissed the petition per curiam as untimely. [ECF 17-4].

         On August 15, 2016, petitioner purportedly placed the instant petition for federal habeas corpus relief in the prison mail system, this Court receiving said petition and filing it of record August 18, 2016. [ECF 1]. On May 23, 2017, this case was abated in order for petitioner to exhaust his state court remedies. [ECF 24].

         On June 11, 2017, petitioner, acting pro se, prepared an application for state habeas corpus challenging his conviction and sentence, said petition being received and filed-marked by the state court on June 20, 2017. Ex parte Gonzales, WR 87, 254-01. [ECF 35-2 at 5-38]. By his state habeas application, petitioner again alleged his conviction was unconstitutional because it was based on evidence obtained by an illegal search and seizure in violation of his Fourth Amendment rights, the exact same ground and bases he now presents in this federal petition. The State filed an answer opposing state habeas relief arguing the same issues were all raised and decided on direct appeal. [ECF 35-2 at 40-43]. On August 23, 2017, the Texas Court of Criminal Appeals denied state habeas relief without a written order. [ECF 35-1].

         On September 6, 2017, the stay in this case was lifted and respondent was ordered to answer petitioner's federal habeas application. [ECF 30; 31]. On November 3, 2017, the State filed ...


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