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Wyatt v. Davis

United States District Court, W.D. Texas, Austin Division

April 16, 2019

MARC WYATT, Petitioner,
LORIE DAVIS, Respondent.



         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Petitioner Marc Wyatt's Application for Writ of Habeas Corpus [HI], the United States Magistrate Judge's Report and Recommendation [#18], and Wyatt's Objections [#24] thereto. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.


         I. Factual Background

         On April 26, 2012, Eugene Fitzpatrick, a manager at a Tractor Supply Company store in Giddings, Texas, arrived at work and noticed the air conditioning was not cooling the building. Resp. [#12] at 6. Later that day, Fitzpatrick looked up at the store's roof where the air conditioning units were located and noticed the units appeared to be damaged. Id. at 6-7. He then accessed the roof to investigate the damage and found that someone had removed aluminum coils and copper tubing from the units. Id. at 7. The night before, Fitzpatrick had received an alert from the store's security system indicating something was amiss. Id. at 6. Fitzpatrick concluded someone had stolen the coils and tubing and reported the crime to the Giddings police department. Id. at 7.

         Police officers Jimmy Webber and Landis Lehman and detective Steve Spencer arrived to investigate the scene, where they discovered foot prints, drag marks, screws, and pieces of sheet metal. Id. They also found a boot print on a wall near a pole running up the side of the building, the impression of the sole of a shoe, and the imprint of the seat of a pair of jeans. Id. Shortly after photographing the scene, Spencer, Webber, and Landis returned to the police station. See Id. at 8.

         At the station, Spencer spoke to Officer Derick Griffin, a patrol sergeant who had been on duty near the store during the early hours of April 26. Id. at 7. Griffin told Spencer that he had observed a truck parked near the store at 2:36 a.m. Id. at 7-8. Griffin had approached the truck, which was unoccupied, and noted that the hood felt somewhat warm, indicating that the vehicle had been recently used. Id. at 8. Griffin also observed a set of power tools inside the truck. Id. Spencer subsequently discovered the truck's owner was Petitioner Marc Wyatt. Id.

         Further investigation revealed Petitioner had used the truck to transport aluminum and copper, which Petitioner sold to a scrap metal yard in Austin, Texas at 9:13 a.m. on April 26. Id. at 8, 10. After obtaining photographs of the metal sold and speaking to the distributor of the air conditioning units about what exactly was taken, Detective Spencer believed the metal Petitioner sold was consistent with the parts that had been removed from the store's air conditioning units. Id. at 8. Spencer concluded Petitioner stole the parts and obtained an arrest warrant for Petitioner. Id.

         Spencer interviewed Petitioner following his arrest. Id. at 9. During the interview, Petitioner admitted he owned the truck Griffin had observed in the early morning of April 26. Id. According to Petitioner, the truck was parked near the store because he had run out of gas, and the truck was empty because Petitioner had walked to a nearby gas station to buy more gas. Id. The manager of the gas station, however, stated that she did not see anyone buy gas, and there were no records of any credit-card transaction at any of the pumps near the time Petitioner claimed to have purchased the gas. Id. The manager further stated that she reviewed the security footage for the gas station on the night of the crime and Petitioner did not appear in the security footage. Id. Captain Earl Pence of the Giddings police department also watched the security footage and agreed that Petitioner did not appear in it. Id.

         As part of his investigation, Detective Spencer obtained a pair of jeans and a pair of shoes belonging to Petitioner from the residence of Elisa Garza, Petitioner's then-girlfriend. Id. Spencer compared the tread on Petitioner's shoes and the seat on Petitioner's jeans to the imprints left at the crime scene and concluded that the imprints were consistent with Petitioner's shoes and jeans. Id. Spencer later submitted the shoes and photographs of the prints left at the crime scene-but not the jeans-to the crime lab, where a forensic scientist determined that some of the shoe prints left at the crime scene could have been made by Petitioner's shoes or some other shoe with a similar tread design. Id. at 9, 11.

         The Giddings police department also interviewed Cleofas Salas, an employee of the scrap yard that purchased the aluminum and copper sold by Petitioner, and Mike Stephens, an employee of the company that built the store's air conditioning units. Salas confirmed that Petitioner sold aluminum and copper to the scrap metal yard and stated that he believed the metals sold by Petitioner came from air conditioning units. Id. at 10. Stephens told the police that he believed the metals Petitioner sold on April 26 were taken from the store's air conditioning units and noted that the weight of the metals removed from the units was nearly identical to the combined weight of the metal Petitioner sold to the scrap metal yard. Id.

         II. Procedural History

         On June 8, 2012, Petitioner was indicted on a charge of criminal mischief causing a pecuniary loss of $20, 000 to $100, 000. Id. at 5; see also R. & R. [#18] at 4. "For enhancement purposes, the indictment also alleged two prior felony convictions for felony theft and burglary of a habitation." Resp. [#12] at 5. At a pretrial hearing, where Petitioner was represented by counsel, the State extended a plea offer of twenty years imprisonment, which Petitioner rejected. State R. [#13-4] at 4-8.

         At trial, Petitioner did not testify in his defense. Pet. [#1] at 3. At the close of the State's case, Petitioner's counsel moved for a directed verdict, which the trial court denied. State R. [#13-7] at 167. The jury found Petitioner guilty of criminal mischief and found the enhancement paragraphs to be true. Resp. [#12] at 5. Consistent with this verdict, the jury sentenced Petitioner to eighty years in prison and assessed a $5, 000 fine. State R. [#13-26] at 90. The trial court further ordered Petitioner to pay $40, 995.61 in restitution. Id. at 99.

         After Petitioner was sentenced, "Petitioner's trial counsel withdrew, and appellate counsel was appointed." R. & R. [#18] at 5; see also State R. [#13-26] at 95. In his appeal to the Third Court of Appeals, Petitioner argued there was insufficient evidence to support the finding that the value of the damaged property was greater than $20, 000. R. & R. [#18] at 5. The appeals court disagreed and affirmed the jury's verdict. Wyatt v. State, No. 03-13-00307-CR, 2014 WL 7475488, at *1 (Tex.App.-Austin Dec. 19, 2014, pet. ref d) (mem. op.). The Texas Court of Criminal Appeals-Texas's court of last resort for criminal cases-refused Petitioner's request for discretionary review. State R. [#13-1].

         On December 8, 2015, Petitioner filed a state habeas petition. See State R. [#13-25] at 6-119; see also R. & R. [#18] at 5. The Court of Criminal Appeals denied relief without written order on November 16, 2016. Resp. [#12] at 6; see also State R. [#13-24]. On February 17, 2017, Petitioner filed a petition for federal habeas relief, which was referred to Magistrate Judge Mark Lane pursuant to 28 U.S.C. ยง 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. On January 23, 2019, Magistrate Judge Lane issued a report and recommendation denying all forty-one of ...

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