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Overstreet v. Davis

United States District Court, N.D. Texas, Fort Worth Division

April 18, 2019

JEROME OVERSTREET, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE JUDGE.

         This is 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.

         Petitioner 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 further proceedings.

         Having considered the pleadings, state court records, and relief sought by petitioner, the court now concludes that the petition should be denied.

         I. Factual and Procedural History

         On 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.[1]) This federal habeas petition followed.

         The state appellate court summarized the facts of the case as follows:

[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.)

         II. Issues

         Petitioner raises eight grounds for relief, which fall into the following categories:

(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.[2])

         III. Rule 5 Statement

         Respondent 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}.

         IV. Legal Standard for Granting Habeas Corpus Relief

         A § 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.

         The 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) .

         Furthermore, 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).

         V. Discussion

         (1) Actual Innocence

         Under 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).

         2. Sufficiency of the Evidence

         Under 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}.

         Applying the Jackson standard and applicable state law, the state appellate court addressed the claims as follows:

         A. 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 ...

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