United States District Court, E.D. Texas, Tyler Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
CLARK, SENIOR DISTRICT JUDGE.
above entitled and numbered civil action was referred to
United States Magistrate Judge John D. Love pursuant to 28
U.S.C. § 636. On February 13, 2019, the Magistrate Judge
issued his Report and Recommendation (Doc. No. 18),
recommending that the Petitioner's application for the
writ of habeas corpus be dismissed with prejudice and
Petitioner John Gee Washam (“Petitioner”) be
denied a certificate of appeal sua sponte.
proceeding pro se and in forma pauperis,
filed Objections (Doc. No. 25) to the Report and
Recommendation. The Court reviews de novo the
portions of the Magistrate Judge's findings to which
objections have been raised. 28 U.S.C. § 636(b)(1).
Having reviewed the Magistrate Judge's findings and
Plaintiff's objections, the Court
OVERRULES Plaintiff's Objections (Doc.
No. 25) and ADOPTS the Magistrate
Judge's Report and Recommendation (Doc. No. 18) as the
findings of the Court.
Court reviews objected-to portions of the Magistrate
Judge's Report and Recommendation de novo.
See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1)
(“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.”). A court conducting a de novo review
examines the entire record and makes an independent
assessment under the law. Douglass v. United States Auto.
Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C.
§ 636(b)(1) (extending the time to file objections from
ten to fourteen days).
petition for a writ of habeas corpus, Petitioner seeks to
challenge his Texas state court conviction for evading arrest
or detention pursuant to Texas Penal Code § 38.04.
Petitioner raises three grounds of error in his Petition: (1)
violation of Petitioner's Fifth Amendment rights by
failing to provide a Miranda warning; (2) failure of
the State to introduce facts sufficient to prove the deadly
weapon enhancement to Petitioner's charge; and (3)
violation of Petitioner's due process rights due to
prosecutorial misconduct and misrepresentations. (Doc. No. 1,
at 6-7.) In his Report and Recommendation, the Magistrate
Judge found that Petitioner failed to show that the state
court's adjudication of his claims resulted in a decision
that was contrary to or involved an unreasonable application
of clearly established federal law, as determined by the
United States Supreme Court, or resulted in a decision based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.
Accordingly, the Magistrate Judge recommended that the
petition for a writ of habeas corpus be dismissed. (Doc. No.
first ground of error focuses on a confession statement he
provided to police officers. As summarized by the Magistrate
Judge, police officers encouraged Petitioner to voluntarily
travel to the police station and provide a statement to
officers. Unbeknownst to Petitioner, police officers had
obtained an arrest warrant for Petitioner and arrested
Petitioner in the lobby of the police station immediately
after his voluntary meeting with police. In his objections,
Petitioner argues he was, “under arrest as soon as he
walked into the police building, cause [sic] their computers,
bulletin and active warrants were in affect [sic] at the am
hour of that day.” (Doc. No. 25, at 2.) Accordingly,
Petitioner argues he was entitled to a Miranda
warning and counsel.
original petition focuses on Petitioner's Fifth Amendment
right against self-incrimination. (Doc. No. 1, at 6-7.) As
the Magistrate Judge correctly noted, a Fifth Amendment right
against self-incrimination and a requirement to provide a
Miranda warning only attaches where, “an
individual is in custody.” Miranda v. Arizona,
384 U.S. 436, 478 (1966). A Miranda warning is not
required in the case of voluntary confessions. Id.
Police officers may make use of “strategic
deception” or trickery to produce a voluntary
statement, so long as such ploys do not rise to, “the
level of compulsion or coercion to speak.” Illinois
v. Perkins, 496 U.S. 292, 297 (1990). Here, Petitioner
voluntarily traveled to the police station and met with
police officers. The presence of compulsion or coercion
ordinarily incident to when a person is in custody is not
found in the instant case. Rather, the record reveals police
officers made use of strategic deception and investigatory
techniques in order to produce a voluntary statement.
Therefore, law enforcement officers did not violate
Petitioner's Fifth Amendment right against
objections focus upon his Sixth Amendment right to counsel
and the Massiah Rule. (Doc. No. 25, at 2-4.)
Petitioner's arguments are untimely and unexhausted. Both
Petitioner's federal habeas petition and state habeas
application were directed toward alleged violations of
Petitioner's Fifth Amendment right against
self-incrimination. (Doc. No. 1, at 6-7; Doc. No. 14-17, at
1-34.) Petitioner raises his Sixth Amendment right to counsel
arguments for the first time in objections to the Magistrate
Judge's Report. Accordingly, Petitioner's Sixth
Amendment arguments are untimely and unexhausted.
further argues that the Magistrate Judge erred in denying
Petitioner's second ground of alleged error because the
State failed to prove that Petitioner “used” a
deadly weapon, specifically a motor vehicle, in the
commission of the charged offense. (Doc. No. 25, at 4.)
Specifically, Petitioner argues that the State cannot meet
their burden of proving that Petitioner “used” a
deadly weapon because they never produced a victim at trial.
Petitioner cites to Ex parte Petty to support
his claims. Facts presented at trial support a determination
that Petitioner used a deadly weapon, namely a motor vehicle,
in furtherance of his offense, namely to evade police. As the
Magistrate Judge noted, there is no constitutional right to
confront a victim of a crime at trial. United States v.
Santos, 589 F.3d 759, 763 n.2 (5th Cir. 2009).
the Court finds that the Magistrate Judge appropriately
recommended that the above-styled application for the writ of
habeas corpus be dismissed.
made a de novo review of the Report and
Recommendation (Doc. No. 18), the Court finds, that Plaintiff
s Objections (Doc. No. 25) should be
OVERRULED and the Magistrate Judge's
Report (Doc. No. 18) should be ADOPTED. The
application for the writ of habeas corpus is
DISMISSED WITH PREJUDICE The Court