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Milligan v. Muniz

United States District Court, N.D. Texas, Dallas Division

April 26, 2019

MARK MILLIGAN, SR., ID # 1883403, Petitioner,
v.
DONALD MUNIZ, Warden, Respondent,

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

         By 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.

         I. BACKGROUND

         Mark 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).

         A. State Court Proceedings

         Petitioner 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.)[1] He pleaded not guilty, and the case was tried before a jury on October 15-18, 2012.

         Petitioner 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.

         Later 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 phone.

         Around 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.)

         The 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.

         The 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).

         B. Substantive Claims

         Petitioner's habeas petition, received on July 13, 2017, raises the following grounds:

         (1) The state habeas court erred by denying his motion for an evidentiary hearing (ground 1);

         (2) The state habeas court erred by denying him counsel to develop his claims and obtain records (ground 2);

         (3) The 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 8);
(f) filing a frivolous motion for new trial (ground 9); and
(g) prejudicing the defense with certain exhibits and other actions (ground 14);

         (5) The 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 (ground 10);
(d) Petitioner was a felon in possession of a firearm (ground 11);
(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 ...

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