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Ware v. Davis

United States District Court, S.D. Texas, Houston Division

June 20, 2019

OLEN WARE, II, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM OPINION AND ORDER

          KEITH P. ELLISON UNITED STATES DISTRICT JUDGE

         Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas petition challenging his conviction and sixty-year sentence for murder. Respondent filed a motion for summary judgment (Docket Entry No. 16) on April 22, 2019, and served a copy of the motion on petitioner at his address of record that same date. Despite expiration of a reasonable period of time of sixty days, petitioner has failed to respond to the motion for summary judgment and the motion is uncontested.

         Based on consideration of the pleadings, the motion, the record, and the applicable law, the Court GRANTS the motion for summary judgment and DISMISSES this case for the reasons shown below.

         I. BACKGROUND AND CLAIMS

         A jury found petitioner guilty of murder in Harris County, Texas, and assessed punishment at sixty years' incarceration on Jure 21, 2013. The conviction was affirmed on appeal. Ware v. State, No. 01-13-00545-CR, 2014 WL 4952432 (Tex. App.-Houston [1st Dist.] Oct. 2, 2014, pet. ref d). The Texas Court of Criminal Appeals refused petitioner's petition for discretionary review ("PDR") on January 14, 2015, and denied his application for state habeas relief on September 19, 2018. Petitioner filed the instant federal habeas petition on or about September 21, 2018.

         Petitioner raises the following grounds for federal habeas relief:

         1. Trial counsel provided ineffective assistance.

         2. Appellate counsel rendered ineffective assistance in:

a. failing to challenge the sufficiency of the evidence;
b. failing to notify him timely that his PDR was refused;
c. failing to challenge in the PDR the denial of his motion to suppress; and
d. raising only one, frivolous claim on appeal.

         3. The trial court erred in:

a. denying his motion to suppress;
b. denying his motion for mistrial; and
c. overruling his objections to the admission of unauthenticated crime scene photos.

         4. The State committed prosecutorial misconduct by suggesting to the jury that his co-defendant had not received a deal in exchange for his testimony.

         Respondent argues that these claims are without merit and should be summarily dismissed.

         II. FACTUAL BACKGROUND

         The intermediate state court of appeals set forth the following statement of facts in its opinion affirming petitioner's conviction:

Peggy Ariza and her son, Edward Hernandez, were involved with the sale of marijuana out of Ariza's home. Appellant, along with three other men, went to Ariza's home with the intent of robbing her and Hernandez. Once at the home, Appellant shot and killed Ariza The jury found Appellant guilty of felony murder.
When the punishment phase of the trial began, the State did not make an opening statement. It re-offered all of:he evidence that it had offered in the guilt-innocence phase and called seven witnesses to testify.
After the State rested, Appellant requested to make an opening statement before presenting his punishment evidence. The trial court denied Appellant's request to make an opening statement. Appellant presented two witnesses during the punishment phase: himself and his mother.
The testimony of Appellant's mother, Cheryl, indicated that Appellant had been a well-behaved child and a good student while growing up. Cheryl's testimony also indicated that Appellant was raised in a stable home with a supportive family. She testified that Appellant had ...

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