United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Jerome Overstreet, a state
prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against
Lorie Davis, director of TDCJ, respondent.
was convicted in state court of capital murder. This case was
stayed on petitioner's motion and has been held in
abeyance since January 18, 2017, pending conclusion of state
post-conviction DNA proceedings. (Order, doc. 30.) Petitioner
informs the court that the DNA proceedings have been
concluded but requests that the petition continue to be held
in abeyance so that he may "obtain an attorney of record
and/or pursue his new state legal claims" or the
conclusion of the Innocence Project's evaluation of his
case. (Pet'r's Resp. 2, doc. 35.) He does not however
demonstrate that he has, in fact, initiated any subsequent
state court remedies. See, i.e., Tex. Code Crim.
Proc. Ann. arts, 11.073 & 64.05 (West 2006 & Supp.
2017); Whitfield v. State, 430 S.W.3d 405, 409 (Tex.
Crim. App. 2014). And, following the additional DNA testing,
the state informed petitioner's court-appointed attorney
in that proceeding as follows:
The Tarrant County Criminal District Attorney's Office
has completed its DNA mixture interpretation review in this
case. Based on our comparison of the original and amended
reports as well as the other evidence supporting your
client's conviction and sentence, there exists no
reasonable probability that any statistical or interpretative
changes impacted the case's outcome. As such our office
has determined that no further action is required on our part
and we are closing out this review.
(Resp't's Resp. to November 28, 2018 order, Ex. A,
doc. 34.) Thus, the additional DNA testing does not
significantly exculpate petitioner of capital murder.
Therefore, the court ORDERS that petitioner's request to
continue to hold the case in abeyance be, and is hereby,
denied. The court further ORDERS that the clerk of court
reopen and reinstate the case on the court's docket for
considered the pleadings, state court records, and relief
sought by petitioner, the court now concludes that the
petition should be denied.
Factual and Procedural History
September 24, 2009, a jury in Tarrant County, Texas, No.
1092061D, found petitioner guilty of capital murder and the
trial court assessed an automatic life sentence. (Clerk's
R. 207, 222-23, 303, doc. 21-18.) Petitioner's conviction
was affirmed on appeal and the Texas Court of Criminal
Appeals refused his petition for discretionary review.
(Docket Sheet 2, doc. 21-3.) Petitioner also filed a state
habeas-corpus application challenging his conviction, which
was denied by the Texas Court of Criminal Appeals without
written order on the findings of the trial court. (SHR-01
2-16 & Action Taken, docs. 21-30 &
21-26.) This federal habeas petition followed.
state appellate court summarized the facts of the case as
[Petitioner] was married to Vicki Overstreet. They had a
rocky marriage, and according to Vicki's friends and
family, [petitioner] was abusive and controlling. In
September 2007, Vicki, fearing for her life, left
[petitioner] and her hometown of Wichita, Kansas and moved to
Texas, She wanted to make a clean break from [petitioner],
but after some time in Texas, she began talking to
[petitioner] again. He started occasionally visiting her on
weekends at her apartment in Texas.
On Wednesday, November 6, 2007, Vicki told her sister Tammy
Foster that she planned to tell [petitioner] that she did not
want to reconcile with him. On Thursday, Vicki told Tammy
that when she broke the news to [petitioner], he became
angry. That same day, Vicki talked to her daughter, Melissa
Collins. Vicki told Melissa about her argument with
[petitioner] and said that [petitioner] had told her that he
was coming to Texas to get her.
Vicki did not show up for work on Friday or Saturday, Melissa
was unable to reach her mother over the weekend, so she
called [petitioner] and asked if he had visited Vicki over
the weekend; [petitioner] told Melissa that he had not been
in Texas and had not spoken to Vicki. [Petitioner] also told
Vicki's son Lamont Webb that he had not talked to Vicki
since the prior Thursday.
When Vicki did not show up for work on Monday morning, her
employer called the police. Police officers went to her
apartment to check on her. Her door was locked, so they got a
key from management. The officers found Vicki lying dead on
the floor in her apartment. Her face was scratched, blood had
run down her cheek from her left nostril, and her forehead
and eye sockets were severely bruised. Her stomach was
discolored and appeared to be bruised, her pants and
underwear were down around her mid thighs, and her shirt was
raised to expose the bottom half of her bra. Her left thigh
appeared to have a bruise in the shape of a hand impression
on it, and her wrists and arms were bruised. Officers saw
traces of tape adhesive on her wrists and arms, but they did
not find any tape in her apartment. The officers suspected
that Vicki had been sexually assaulted.
The carpet appeared as if it had been freshly vacuumed
because there were vacuum markings on it, yet officers could
not find a vacuum in the apartment. In the bathroom trashcan,
officers found a grocery store receipt from a nearby Kroger
store in Euless that was for the purchase of a bottle of
Riunite wine on Friday, November 9, 2007. The purchaser had
used a debit card that was registered to [petitioner]. A
surveillance video from the Kroger store taken on November 9
confirmed that [petitioner] had made the purchase. The bottle
of wine was not found in the apartment. One wine glass was on
the kitchen counter, and officers also found a box for two
wine glasses matching the description of the glass they
found, but they did not find the other matching glass.
Cell phone tower records for [petitioner]'s mobile phone
number showed that, on Friday, November 9, phone calls were
made from that number in Wichita at 6:13 a.m. and 6:50 a.m.;
in Southaven, Kansas at 10:17 a.m.; in Edmond, Oklahoma at
11:49 a.m.; in Sanger, Texas at 2:31 p.m.; and in Euless at
3:46 p.m. Several calls were made in the Euless area from
that afternoon until 1:26 a.m. on Saturday morning, and the
next call was not made until 7:39 a.m. on Saturday morning
from Springer, Texas, By 12:08 p.m., calls were made from the
Wichita area. According to [petitioner]'s employer,
[petitioner] clocked in to work on Wednesday, November 7,
took vacation days on November 8 and 9, and next clocked in
on Monday, November 12.
Euless detective Tony Bennett went to Wichita and interviewed
[petitioner]. [Petitioner] told Bennett that he had last
spoken with Vicki on Friday, November 9, by telephone. Euless
police officers worked with Wichita police officers to obtain
a warrant to search [petitioner]'s house in Wichita. From
[petitioner]'s house, officers seized a bottle of Riunite
wine, a canister to a Dirt Devil vacuum, keys, papers with
[petitioner]'s name on them, and an insurance policy in
Vicki'' s name.
Crime lab testing on the contents of the vacuum's
canister showed that carpet fibers and glitter found in the
canister were chemically and microscopically the same as the
carpet fibers and glitter found in the carpet of Vicki's
apartment. Testing of three sections of carpet taken from
Vicki's apartment showed a "strong presence" of
semen; [petitioner]' s DNA was an identical
match to the semen on two of the carpet cuttings, as well as
to semen found on a pillowcase taken from the apartment. A
partial male DNA profile was found on a second pillowcase,
which had been lying on Vicki's body when officers found
her; the majority of [petitioner]'s DNA profile
was present in the mixture on that pillowcase.
An examination of Vicki's body showed signs that
Vicki's mouth and nose had been smothered and that Vicki
may have been strangled. The medical examiner also saw
evidence that Vicki had suffered blunt force trauma on her
head, chest, abdomen, and thighs. The bruising on Vicki's
thighs was consistent with someone forcing her legs apart.
The medical examiner opined that Vicki had died of traumatic
asphyxia, Vaginal swabs collected from Vicki's body
tested weakly positive for semen, but further
"confirmatory test[s]" were negative for semen.
(Mem. Op. 2-5, doc. 21-5.)
raises eight grounds for relief, which fall into the
(1) actual innocence (ground two);
(2) sufficiency of the evidence (grounds three and four); and
(3) ineffective assistance of counsel (grounds one, five,
six, seven, and eight}.
(Pet. 6.1-6, 8, doc. 1.)
Rule 5 Statement
believes that petitioner has sufficiently exhausted his state
court remedies as to the claims raised, save for ground
number eight, which is raised for the first time in this
federal habeas petition. Respondent does not otherwise
believe that the petition is barred by limitations or subject
to the successive-petition bar. (Resp't's Answer 3.)
28 U.S.C. §§ 2244(b), (d) & 2254(b)(1}.
Legal Standard for Granting Habeas Corpus Relief
§ 2254 habeas petition is governed by the heightened
standard of review provided for in the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254.
Under the Act, a writ of habeas corpus should be granted only
if a state court arrives at a decision that is contrary to or
an unreasonable application of clearly established federal
law as established by the United States Supreme Court or that
is based on an unreasonable determination of the facts in
light of the record before the state court. 28 U.S.C, §
2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86,
100 (2011). This standard is difficult to meet and
"stops short of imposing a complete bar on federal court
relitigation of claims already rejected in state
proceedings." Richter, 562 U.S. at 102.
statute further requires that federal courts give great
deference to a state court's factual findings. Hill
v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section
2254(e)(1) provides that a determination of a factual issue
made by a state court shall be presumed to be correct. The
petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S.
322, 340 (2003); Williams v. Taylor, 529 U.S. 362,
399 (2000) .
when the most recent state court to consider a constitutional
issue provides a "reasoned opinion," a federal
habeas-corpus court must "review the specific reasons
given by the state court and defer to those reasons if they
are reasonable." Wilson v. Sellers, ___ U.S.
___, 138 S.Ct. 1188, 1191-92 (2018). If the opinion was made
without a written explanation, a federal court should
"`look through' the unexplained decision to the last
related state-court decision providing" particular
reasons, both legal and factual, "presume that the
unexplained decision adopted the same reasoning," and
give appropriate deference to that decision. Id. In
other words, federal habeas-corpus courts confronted with an
unexplained state court decision "are to `look
through' the decision to an earlier state court opinion
and presume that the earlier one provides the relevant
rationale." Thomas v. Vannoy, 898 F.3d 561, 568
(5th Cir. 2018) (citing Wilson, 138 S, Ct. at 1192).
his second ground, petitioner claims that he is actually
innocent of the offense. (Pet. 6.2, doc. 1.) A stand alone
claim of "actual innocence" is itself not an
independent ground for habeas-corpus relief. Herrera v.
Collins, 506 U.S. 390, 400 (1993); Foster v.
Quarterman, 466 F.3d 359, 367 (5th Cir. 2006);
Dowthitt v. Johnson, 230 F.3d 733, 741-42 (5th Cir.
2000}. The United States Supreme Court reaffirmed in
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013), that
it has not resolved whether a prisoner may be entitled to
habeas-corpus relief based on a freestanding claim of actual
innocence. Until that time, such a claim it not cognizable on
federal habeas review under Fifth Circuit law. See Foster
v. Quarterman, 466 F.3d 359, 367 (5th Cir. 2006).
Sufficiency of the Evidence
his third and fourth grounds, petitioner claims that the
evidence was legally insufficient to prove beyond a
reasonable doubt his identity as the perpetrator or that he
committed sexual assault or attempted to commit sexual
assault. (Pet. 6.3-6.4, doc. 1.) A criminal defendant has a
federal due process right to be convicted only upon evidence
that is sufficient to prove beyond a reasonable doubt the
existence of every element of the offense. Foy v.
Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal
courts, nevertheless, have extremely limited habeas review of
claims based on the sufficiency of the evidence. When
reviewing such claims, the relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). When
faced with a record of historical facts that supports
conflicting inferences federal courts must presume-even if it
does not affirmatively appear in the record-that the trier of
fact resolved any such conflicts in favor of the prosecution,
and must defer to that resolution. Id. at 326. Under
Jackson, both direct and circumstantial evidence can
contribute to the sufficiency of evidence and circumstantial
evidence alone may be enough to support the conviction.
Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir.
1990). Where a state appellate court has conducted a
thoughtful review of the evidence, its determination is
entitled to great deference. Collins v. Collins, 998
F.2d 269, 276 (5th Cir. 1993}.
the Jackson standard and applicable state law, the
state appellate court addressed the claims as follows:
Legal Sufficiency Standard of Review
In our due-process review of the sufficiency of the evidence
to support a conviction, we view all of the evidence in the
light most favorable to the prosecution to determine whether
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. The trier of fact is the sole judge
of the weight and credibility of the evidence. Thus, when
performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and
substitute our judgment for that of the factfinder. Instead,
we determine whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the
evidence when viewed in the light most ...