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Jones v. Davis

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

August 6, 2019

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



         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Anthony Leroy Jones, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of that division, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         In 2012 Petitioner was indicted in Tarrant County, Texas, Nos. 1297281D and 1297869D, on two counts of aggravated robbery with a deadly weapon. 1Clerk's R. 7, ECF No. 12-1; 2Clerk's R. 7, ECF No. 12-2.[1] Both indictments included a habitual-offender notice. On February 24, 2014, pursuant to a plea agreement, Petitioner entered open pleas of guilty to two counts of the lesser-included offense of robbery by threats and true to the habitual-offender notices and the state waived the deadly-weapon allegations. 1Clerk's R. 109, ECF No. 12-1; 2Clerk's R. 104, ECF No. 12-2. Petitioner elected a jury to assess his punishment. At the conclusion of his jury trial on punishment, the jury assessed his punishment at 60 years' confinement in each case, the sentences to run concurrently. Petitioner's convictions were affirmed on appeal. He did not file a petition for discretionary review or seek writ of certiorari. Pet. 3, ECF No. 1. He did however challenge his convictions in two relevant post-conviction state habeas-corpus applications, which were denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court.

         II. ISSUES

         In this federal petition, Petitioner raises the following three grounds for relief:

(1) the trial court “abused its discretion by not sua sponte conducting a competency hearing 1) after Petitioner's plea-bargain stage; 2) before denying [Petitioner's] motion for continuance; and 3) before accepting [Petitioner's] guilty plea[s]”;
(2) Petitioner's refusal of a 20-year plea offer was “due to: 1) his mental confused state of mind induced by his numerous psychiatric medications side-effects; and 2) ineffective assistance of counsel[, ]” entitling him to a “second chance” at the 20-year plea offer; and
(3) Petitioner was denied effective assistance of counsel “when [counsel] failed to investigate Petitioner's mental history and present as substantial mitigating evidence to establish a defense of mental instability at the time of the offense” to the jury.

Id. at 6-7.


         Respondent believes that Petitioner has exhausted his claims in state court and that the petition is neither untimely nor subject to the successive-petition bar. Resp't's Answer 5 & n.3, ECF No. 15; Pet'r's Mem. 2-3, ECF No. 2; Pet'r's App. Exs. 4 & 5, ECF No. 3.


         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. Harrington v. Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. § 2254(d)(1)-(2). Additionally, the statute 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. It is the petitioner's burden to rebut the presumption of correctness through clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Finally, when the Texas Court of Criminal Appeals, the state's highest criminal court, denies relief on a state habeas-corpus application without written order, typically it is an adjudication on the merits, which is likewise entitled to this presumption. Richter, 562 U.S. at 100; Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court “should ‘look through' the unexplained decision to the last related state-court decision providing” particular reasons, both legal and factual, “presume that the unexplained decision adopted the same reasoning, ” and give appropriate deference to that decision. Wilson v. Sellers, __ U.S. __, 138 S.Ct. 1188, 1191-92 (2018).

         V. DISCUSSION

         Relevant to all three grounds is the testimony of Petitioner's trial counsel, Patrick Curran and Daniel Cleveland. Curran responded to Petitioner's claims in an affidavit filed in the state habeas proceedings as follows (any spelling, punctuation, and/or grammatical errors are in the original):

I . . . was the first chair trial attorney for [Petitioner]. My second chair was attorney Dan Cleveland. I was appointed to represent [Petitioner] on September 21, 2012. I brought attorney Dan Cleveland into the case about February 2014, the month the case was tried to a jury after an open plea of guilty to two robberies with habitual offender notices.

         [Petitioner] alleges three grounds of the writ:

1. That the trial court abused its discretion by not sua sponte conducting a competency hearing after [Petitioner]'s plea bargain stage and before his denial for a continuance and before accepting his guilty plea. He alleged that this violated his14th Amendment Due Process right of the U.S. Constitution.
2. [Petitioner]'s refusal of the twenty years prison plea offer was due to his mentally confused state of mind induced by his numerous psychiatric medication side effects and to the ineffective assistance of counsel. He alleged that these two things entitle him to a second chance at the twenty years in prison plea offer.
3. Trial counsel provided ineffective assistance of counsel when he failed to investigate [Petitioner]'s mental history to allow substantial mitigating evidence to establish [Petitioner]'s instability at . . . the time of the offense.
[Petitioner]'s first ground is further explained in his application for a writ . . . . The trial judge did not abuse his discretion in not conducting a competency hearing or inquiry and did not abuse its discretion for not ordering a psychologist to examine [Petitioner] for competency. I told the trial judge that I got an expert in psychology appointed to assist me in the defense of [Petitioner] and any mitigation needed. I told the court that the psychologist first had to determine that [Petitioner] was competent before doing anything else. I told the trial judge that my expert did find [Petitioner] competent and that I believed [Petitioner] was competent. I reviewed the record of the pre-trial discussions . . . . The transcripts reveal [Petitioner] was competent by answering the questions appropriately. [Petitioner] testified at his trial and appeared competent on the stand. The trial judge did not abuse his discretion in not conducting a competency hearing or review [nor] did the judge error in not ordering a competency evaluation.
[Petitioner]'s second ground is that he refused the plea bargain offer of twenty years in prison because he was confused due to his numerous psychiatric medication side effects. He further alleges in this ground that his attorney provided ineffective assistance of counsel. He claims he should get another chance to accept the twenty years in prison offer. [Petitioner] did not mention to me, his first chair lawyer, that he was having side effects of his medication that affected his ability to understand me or the plea bargain. At no time did anyone tell me that [Petitioner] was having trouble understanding the plea bargain process. [Petitioner] was first offered twenty-five years in prison plea bargain offer on November 12, 2012 court date by Assistant District Attorney Jim Hudson. I told [Petitioner] about that offer on that court date.
[Petitioner] did not want that offer. I explained to him that was the range of punishment by law. [Petitioner] seemed to understand the offer and his range of punishment. On [Petitioner]'s status conference court date of April 1, 2013 he was offered 20 years in prison. I told [Petitioner] about the offer that day and recommended he take that offer. [Petitioner] understood that offer but refused the offer. I told [Petitioner] that even if the aggravated robbery charges were dropped to robbery because a BB gun was used in the robbery, he still would be facing a minimum of 25 years in prison and up to 99 years or life in prison because he was charge with be a habitual offender. He understood all that but did not want the plea offer. Again on a May 28, 2013 court date [Petitioner] turned down another offer of 20 years in prison against my advice. That same court date [Petitioner] was then offered 18 years in prison. He also turned down that plea bargain offer against my advice. On his June 10, 2013 court date [Petitioner] again was offered 18 years in prison and turned down that offer against my advice. All the above offers were made by the same above prosecutor. Each was offered on a court date. I made the offer to [Petitioner] that same court date and recommended [Petitioner] take the offers. He declined each offer against my advice. He understood the offers and never expressed to me any problems understanding me nor any problems because [of] side effects of his medications or any other reason. I repeatedly told [Petitioner] on the above court dates that even if he were found guilty of only robbery because he used a BB gun, he would still be facing 25 years in prison to 99 years or life because he was charged as a habitual offender.
[Petitioner]'s third ground is that the trial counsel provided ineffective assistance of counsel when I failed to investigate [Petitioner]'s mental history to allow substantial mitigating evidence. The DVD of the court reporters record contains my experts report and addendum. . . . The report points out the numerous mental health records of [Petitioner] that I got, read and gave to my expert psychologist Dr. Jim Womack. Dr. Womack read these and did testing on [Petitioner]. HE determined that [Petitioner] was not insane at the time of the alleged offenses. For trial strategy reasons I only admitted the Tarrant County MHMR records in mitigation because the other records would probably have done more harm to [Petitioner] than good. There were references that [Petitioner] cut cats heads off and he considered decapitating people. He even considered killing his brother and female friend, both of whom he loved. Those records show a violent and dangerous aspect of [Petitioner]. I did not call my expert psychologist Dr. Womack as a witness in mitigation because Dr. Womack's report. I talked to Dr. Womack about his report and findings and he said there was a strong indication that [Petitioner] exaggerated his mental health problems. He felt [Petitioner] was malingering and had a history of malingering. He determined that [Petitioner]'s recorded history and in what [Petitioner] told the doctor reflects a likely mental illness that finds expression through antisocial behaviors which in turn are reflective of [Petitioner]'s character. Dr. Womack reasoned that [Petitioner]'s criminality is primarily a function of early learning and not attributable to his mental illness. For trial strategy reasons, I felt that Dr. Womack's testimony would do more harm to [Petitioner] than good. I did admit the Tarrant County MHMR mental health records because they did not mention much of the dangerous things [Petitioner] considered doing to people that the other mental health records did. The Tarrant County MHMR records contained diagnosis, psychiatric medications and many things about [Petitioner]'s mental health. The direct examination of [Petitioner] discussed [his] mental health problems. [Petitioner]'s diagnosis for schizoaffective disorder, history of prior psychiatric problems and psychotropic medications are mentioned . . . in the MHMR report admitted into evidence. In closing argument . . . I argued [Petitioner]'s mental health problems were mitigation evidence the jury should consider. For trial strategy reasons that I just mentioned, the only mental health records I had admitted in trial were his Tarrant County MHMR records to keep out the evidence of [Petitioner]'s dangerous actions off cutting off cats heads, thinking of killing people and loved ones and even decapitating people.
My other efforts to represent [Petitioner] were to get an investigator David Marlow appointed to assist me in the case. I gave Mr. Marlow all of the police reports and other discovery the District Attorney's gave me. I discussed all the discovery with [Petitioner]. I met with [Petitioner] seven times in the jail. We discussed the cases in detail including all the police reports and discovery. We discussed all the offers and plea bargaining. We discussed the range of punishment. We discussed his mental health records and history and using it as insanity defense and mitigation. I talked to him about the BB gun and how that could change the aggravated robberies to robberies but there would still be a habitual offender notice with robberies on both cases. I talked to him eight times collect on the phone when he was in jail to discuss the cases. He was in jail the whole time I represented him. He had numerous court dates before the trial date in which we discussed the case in the holdover cells. [Petitioner] only wanted his friend Carrie Ross to come to his trial and testify. She said on lived in Houston and could not come to Fort Worth to testify. My investigator tried to get [Petitioner]'s sister to come to court but she would not return over 10 calls to her after the initial call where she said she lived in the Houston and did not have a car to come to the trial.

         03SHR 63-66, ECF No. 12-23 (record citations omitted). Daniel Cleveland testified similarly by affidavit. Id. at 67-69.

         Under his first ground, Petitioner claims that the trial court abused its discretion by failing to sua sponte conduct a competency hearing before, during, or after the guilty-plea stage. Pet. 6, ECF No. 1. Based on counsel's affidavits and the documentary record, the state habeas court entered the following factual findings relevant to the claim:

7. [Petitioner] presents no new evidence of his mental health history.
8. [Petitioner] was ordered evaluated for mental illness and mental retardation on September 24, 2012.
9. On September 26, 2012, the trial court was notified that [Petitioner] had been evaluated by a qualified mental health professional and the professional found that there was no “clinical evidence to support a belief that [Petitioner] may be incompetent to stand trial.” 10. On September 26, 2012, the trial court was notified that the qualified mental health professional concluded there was no need for [Petitioner] to “undergo a complete competency examination.” 11. [Petitioner]'s psychological evaluation was submitted to the trial court on February 24, 2014.
12. [Petitioner]'s MHMR record were [sic] presented to the jury during the punishment phase on February 25, 2014.
13. Prior to trial, [Petitioner]'s counsel advised the trial court that [Petitioner]'s own chosen expert found [Petitioner] competent to stand trial.
14. Both [Petitioner]'s counsel found [Petitioner] to be competent.
15. [Petitioner]'s counsel's expert psychologist found that [Petitioner] was malingering and had a history of malingering.
16. There is no evidence that [Petitioner] did not have sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding at the time of trial.
17. There is no evidence that [Petitioner] did not have a rational as well as factual understanding of the proceedings against him at the time of trial.
18. [Petitioner]'s claim that the trial court should have conducted a competency hearing sua ...

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