United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE
Special Order 3-251, this habeas case has been
referred for findings, conclusions, and recommendation. Based
on the relevant findings and applicable law, the petition for
writ of habeas corpus under 28 U.S.C. § 2254 should be
DENIED with prejudice.
Milligan, Sr. (Petitioner), an inmate currently incarcerated
in the Texas Department of Criminal Justice-Correctional
Institutions Division (TDCJ-CID), filed a § 2254
petition for writ of habeas corpus challenging his conviction
for murder. The respondent is Donald Muniz, Warden of
TDCJ-CID Scott Unit (Respondent).
State Court Proceedings
was indicted for murder in Cause No. F11-27465 in the 363rd
Judicial District Court of Dallas County, Texas.
(See doc. 23-2 at 13.) He pleaded not guilty, and the
case was tried before a jury on October 15-18, 2012.
was estranged from his girlfriend (Girlfriend), with whom he
had children. She had been living in her sister's
apartment, but at the end of October 2011, she began moving
into her niece's house. On October 29, 2011, Petitioner
took their children to the niece's house. He argued with
Girlfriend about the fact that she had a boyfriend. Her
nephew began fighting with Petitioner, who told the nephew
that Girlfriend was cheating, bit him, and stomped on his
foot. Girlfriend called the police, and Petitioner left
before they arrived.
that night, Girlfriend and the victim went out to celebrate
her birthday. Both were drinking, and they “had quite a
few.” Throughout the evening, Girlfriend and Petitioner
exchanged “hateful” texts. She gave the victim
Petitioner's cell phone number, and he sent text messages
to Petitioner. The victim and Girlfriend returned to the
sister's apartment, where they planned to spend the
night. The victim took a photo of Girlfriend performing oral
sex on him and sent the picture to Petitioner's cell
1:00 a.m., Girlfriend and the victim awakened to a loud
banging on the door of the apartment, which sounded like
someone trying to kick the door in. The victim answered the
door, and Petitioner shot him in the head. Petitioner then
fired at Girlfriend and chased her through the apartment.
When he caught her, he put the gun in her mouth and pulled
the trigger, but the gun did not discharge. She escaped to a
neighbor's apartment, and the neighbor called the police.
Petitioner left before the police arrived. Girlfriend told
them what had happened. Petitioner was located, arrested, and
interviewed by a Garland police detective. Petitioner showed
the detective the photo from the victim. He admitted to the
shooting and took the officers to a location where they
recovered the gun he had used. The statement was not
introduced into evidence at trial. See Milligan v.
State, No. 05-12-01537-CR, 2014 WL 7499050 at *1-2 (Tex.
App. - Dallas Dec. 30, 2014). Petitioner also told
Girlfriend's sister that Girlfriend was lucky that she
did not die because he ran out of bullets. (See doc.
23-11 at 66-67.)
jury convicted Petitioner of murder and found that he acted
under the immediate influence of sudden passion arising from
adequate cause. He was sentenced to 15 years'
imprisonment. (See doc. 23-2 at 74.) He filed a
motion for new trial claiming that the verdict was contrary
to the law and the evidence, and it was overruled.
(See doc. 23-2 at 79.) The judgment was affirmed on
appeal. See Milligan, 2014 WL 7499050.
Texas Court of Criminal Appeals refused a petition for
discretionary review. See Milligan v. State,
PD-0034-15 (Tex. Crim. App. Apr. 22, 2015). Petitioner's
state habeas application was signed on January 16, 2016, and
received by the court on February 8, 2016. (See doc.
23-46 at 5, 29.) On May 17, 2017, it was denied without
written order. (See doc. 23-38); see Ex parte
Milligan, WR-28, 964-06 (Tex. Crim. App. May 17, 2017).
habeas petition, received on July 13, 2017, raises the
state habeas court erred by denying his motion for an
evidentiary hearing (ground 1);
state habeas court erred by denying him counsel to develop
his claims and obtain records (ground 2);
state habeas court's decision to deny his ineffective
assistance of counsel claims was objectively unreasonable
because counsel was ineffective for:
(a) failing to investigate, obtain records to support, and
present a justification defense (ground 3);
(b) introducing police reports that showed he was guilty into
the record at a pretrial hearing, effectively admitting guilt
and failing to contest the search of the apartment he claims
was his home (ground 4);
(c) failing to present any defense or subject the state's
case to adversarial testing, relying on a mentally distraught
person to pass notes during trial; and failing to present
evidence that Petitioner lived at the apartment, and that the
victim had no right to be there (ground 5);
(d) failing to investigate an illegal sentence at the
punishment stage and failing to show the jury that the
offense was in his home where he had a right to be (ground
(f) filing a frivolous motion for new trial (ground 9); and
(g) prejudicing the defense with certain exhibits and other
actions (ground 14);
state habeas court unreasonably determined that
(a) Petitioner had no right to defend himself, his family, or
his property because he was an ex-felon (ground 6);
(b) Petitioner gave up his property rights (ground 7);
(c) Petitioner did not live at the scene of the offense
(d) Petitioner was a felon in possession of a firearm (ground
(e) Petitioner had no legal standing to contest the illegal
search of his home (ground 12);
(f) Petitioner would be required to testify in order to bring
his defensive issues before the ...