United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Harold Michael Moore, a
state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Lorie Davis, director of TDCJ, respondent. After
having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be denied.
Factual and Procedural History
petitioner was indicted for felony DWI in Tarrant County,
Texas, No. 1394673D. (Clerk's R. 5.) The indictment also
included a repeat-offender and deadly-weapon-finding notice.
(Id.) On October 15, 2015, petitioner entered an
open plea of guilty to the offense, a plea of
"true" to the repeat-offender notice, and a plea of
"not true" to the deadly-weapon-finding notice.
(Id. at 5, 24.) Following a sentencing hearing, the
trial court found petitioner guilty, found the
repeat-offender notice true, and found that petitioner used a
deadly weapon, his motor vehicle, in the course of committing
the offense. (Id. at 31, 33.) Petitioner
appealed the affirmative deadly-weapon finding and the
appellate court sustained the issue, deleted the finding, and
affirmed the trial court's judgment as modified. (2d Ct.
of App. Op. 19.) Subsequently, the Texas Court of Criminal
Appeals (TCCA) reversed the appellate court's judgment
and reinstated the original judgment of the trial court.
(Tex. Crim. App. Op. 14.) Petitioner then filed a state
habeas~corpus application, which the TCCA denied without
written order on the findings of the trial court.
7 & Action Taken.) This federal petition followed.
The facts were summarized by the TCCA as follows:
In an open plea, [petitioner] pled guilty to the offense of
driving while intoxicated, charged as a felony since he had
been convicted a number of times previously for that offense.
His blood alcohol content shortly after his arrest was, 27,
almost three and a half times the legal threshold for
intoxication. But he pled not true to the allegation that he
used a deadly weapon in the course of the offense, and the
trial court conducted a punishment hearing without a jury.
Only one witness testified for the State, Shannon Koen..
Koen was idling in her 2011 BMW sedan, with her foot on the
brake, four to five feet behind a white SUV, at a red light
on the three-lane service road of Highway 114, where it
intersects with Dove Road. There were other cars in the
vicinity as well, although Koen was not asked to estimate how
many. Koen's fourteen-year-old daughter was also in the
car with her. It was a Monday evening, between 6:20 and 6:30
p.m., and already dark. After she had been idling for only
``a few seconds or so" waiting for the red light to
change, according to Koen, "all of a sudden, there was a
huge impact and crash." [Petitioner]'s Mercedes SUV
had struck Koen's car from behind, pushing it forward so
that it struck the white SUV in front of her, in turn
knocking the white SUV out into the intersection. The white
SUV was able to proceed through the intersection, and it
pulled over to the shoulder with its flashers activated.
Koen's airbags never deployed, and nobody was seriously
hurt; Koen and her daughter both suffered only a few bruises
and scratches, and lingering soreness. But Koen's
three-year-old BMW was later declared by an insurance
adjuster to be a total loss. On cross-examination, Koen
readily admitted that she had not seen [petitioner] coming
before his car struck hers. She did not know whether he had
been speeding, driving erratically, or failing to obey any
other traffic signals before the accident.
(Tex. Crim. App. Op. 2-3 (footnotes omitted}.)
ground for relief, petitioner asserts that his "sentence
violates his due process rights because he was required to
disprove facts not in evidence, an unconstitutional burden
shifting," on the issue of the deadly-weapon finding.
(Form Pet. 6.)
Rule 5 Statement
believes that the petition was filed in a timely manner and
that petitioner sufficiently exhausted his state-court
remedies. (Resp't's Answer 5.)
Standard of Review
§ 2254 habeas petition is governed by the heightened
standard of review provided for by 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 determined 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,
statute also 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. A
petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C.