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Moore v. Davis

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

May 30, 2019

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         This is 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.

         I. Factual and Procedural History

         In 2014 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.[1] (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. (SHR[2] 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}.)

         II. Issues

         In one 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.)

         III. Rule 5 Statement

         Respondent believes that the petition was filed in a timely manner and that petitioner sufficiently exhausted his state-court remedies. (Resp't's Answer 5.)

         IV. Standard of Review

         A § 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, 100-01 (2011).

         The 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. ...

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