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Griffith v. Davis

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

August 16, 2019

MICHAEL WAYNE GRIFFITH, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND, ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Michael Wayne Griffith, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice, against Lorie Davis, director of that division, 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 July 2013 a jury in Tarrant County, Texas, No. 1223635D, found petitioner guilty of aggravated assault with a deadly weapon, a firearm, in the shooting of Darren Rhea and assessed his punishment at 20 years' confinement. (Clerk's R. 51.) Petitioner's conviction was affirmed on appeal and the Texas Court of Criminal Appeals refused his petition for discretionary review. (J.; Electronic R.) Petitioner also sought postconviction state habeas-corpus relief by challenging his conviction in a state habeas application, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (SHR[1] 2-19 & Action Taken.} This federal petition followed.

         The state appellate court summarized the evidence at trial as follows:

Darren Rhea owns an airplane hangar at Hicks Airfield in Tarrant County, Texas. Rhea used the hangar to store equipment and trailers. [Petitioner] also owned and lived in a hangar at Hicks Airfield. Rhea hired [petitioner] to do routine maintenance on his pool. When Rhea began having trouble with the pool pump, he asked [petitioner] to fix it. [Petitioner] worked on the pool pump, but he did not fix the problem, and Rhea had to hire someone else. According to Rhea, [petitioner] put used, rusty parts into the pool pump. Rhea did not want to pay [petitioner] the full amount for the repair job since he had not repaired the problem with the pool pump and it had been necessary to hire someone else. He saw [petitioner] at the hangar and they had a conversation about the situation and what Rhea owed him. Rhea told [petitioner] that he did not want to pay the full amount for the repairs. He described it as the "last normal conversation" he had with [petitioner]. Over the next several weeks, [petitioner] became increasingly angry and agitated. On two different occasions, [petitioner] sat in his truck outside of the hangar and repeatedly screamed "I want my money!" while honking the horn continuously for about twenty minutes. [Petitioner] arrived at the hangar another day and came inside to yell and cuss at Rhea about the unpaid repair bill. Rhea suggested that they take the matter to JP Court to resolve it, but [petitioner] refused. Rhea asked [petitioner] to leave, but Rhea did not act aggressively towards him.
On November 26, 2010, Rhea went to the hangar with his ten-year-old son [Jake Rhea] at about 5:30 p.m. to get a trailer to transport four-wheelers. As they were hooking up the trailer, Rhea saw [petitioner] sitting in his truck with the headlights turned off. After a couple of minutes, Rhea saw the truck's headlights illuminate and the truck moved towards his hangar. [Petitioner] pulled the truck up to the hangar so that the front of the truck was in the doorway, and he immediately started yelling and cussing at Rhea. [Petitioner] was extremely agitated, red-faced, and disheveled. Rhea sensed that this was not going to be a short visit by [petitioner], so he sent his son upstairs to get a soft drink. Rhea told [petitioner] to stop cussing in front of his son and to get out of the truck if he wanted to talk. Rhea had started walking towards the truck when he noticed that [petitioner] looked different than he had seen him before and he appeared to be in a rage. Just as Rhea noticed the barrel of a gun pointing out of the truck window, his body was suddenly spun around so that he was facing the hangar. After a couple of seconds, Rhea realized [petitioner] had shot him in the abdomen, and he turned back around and said to [petitioner], "You shot me." Fearing for his son, Rhea watched [petitioner] to see what he was going to do. When [petitioner] backed up the truck and drove slowly away, Rhea and his son got into their truck. Rhea called 911 as he drove towards the front gate of the airfield. Emergency responders met Rhea at the gate and transported him to a hospital where he underwent surgery to remove a portion of his large intestine damaged by the bullet.
Law enforcement officers were in the process of securing the crime scene at Rhea's hangar when [petitioner] called 911. [Petitioner] told the 911 operator he was at his hangar and indicated that he would come outside unarmed. When officers arrived at that location, [petitioner] came out of the hangar with his hands up, but he refused to consent to a search of the hangar or his vehicle. The Tarrant County Sheriff's Department obtained a search warrant for [petitioner]'s hangar and truck. Deputies conducted a search and found a .22 caliber revolver in the cup-holder of [petitioner]'s vehicle.

(Op. 1-3.)

         Petitioner testified at trial that he suffered from myositis, a degenerative nerve disorder, that makes him weak; that Rhea never complained about the work done on his pool but refused to pay for it; that he had repeatedly sent bills and certified letters to Rhea with no response; that every time he saw Rhea at his hangar he asked Rhea nicely for payment without using derogatory terms or profanity; that on the evening in question Rhea approached his truck in an aggressive manner, punched him in the mouth, and tried to pull him through the window of his truck; that, fearing serious bodily injury or death, he fired a warning shot out the window in self-defense so Rhea would let him go; and that he backed away without knowing whether he had shot Rhea. He went to his hangar, called 911, and reported that he had been assaulted and may have shot someone. (Reporter's R., vol. 3, 211-29; Pet'r's Br. 4-5.)

         I. ISSUES

         In one ground, petitioner claims he received ineffective assistance of trial counsel in various respects. (Pet. 5.[2])

         III. RULE 5 STATEMENT

         Respondent believes that petitioner has sufficiently exhausted his state court remedies as to the claims raised and that the petition is not otherwise barred by successiveness or the federal statute of limitations. (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. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000). Additionally, when the Texas Court of Criminal Appeals, the state's highest criminal court, denies relief on a federal claim without written opinion, a federal court may presume that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary and applied the correct "clearly established federal law" in making its decision. Johnson v. Williams, 568 U.S. 289, 298 (2013); Richter, 562 U.S. at 99. 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, 138 S.Ct. 1188, 1191-92 (2018).

         V. DISCUSSION

         A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. Const, amend. VI, XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984). To establish ineffective assistance of counsel, a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. In applying this test, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.

         Ineffective-assistance-of-counsel claims are considered mixed questions of law and fact and, therefore, are analyzed under the "unreasonable application" standard of § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state court adjudicated the ineffective-assistance claims on the merits, this court must review petitioner's claims under the "doubly deferential" standards of both Strickland and § 2254(d). Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In such cases, the "pivotal question" for this court is not "whether defense counsel's performance fell below Strickland's standard"; it is "whether the state court's application of the Strickland standard was unreasonable" or whether the state court's factual determination on which the decision was based was unreasonable in light of the evidence presented in the state court proceedings. See Richter, 562 U.S. at 105; Wood v. Allen, 558 U.S. 290, 299 (2010) .

         Petitioner was represented at trial by Steven G, King and Erik C. Hudak. Petitioner asserts that counsel were ineffective by failing to—

(1) file a motion in limine and object to police opinion testimony that Rhea was telling the truth and petitioner was lying;
(2) file a motion in limine and object to repeated references by the prosecutor and police officers to Rhea as the "victim";
(3) file a motion in limine and object to testimony that petitioner concealed loaded long guns in his apartment; and
(4) object to the prosecutor's opinion that Rhea's son was telling the truth.

(Pet'r's Br. 12-21.)

         Petitioner raised his ineffective-assistance claims in the state habeas proceeding, however Steven G. King refused to answer written questions concerning the trial from petitioner's habeas counsel, disregarded the habeas court's order to provide an affidavit responding to the claims, and subsequently committed suicide. (Id. at 11; SHR 75-104, 152.) Erik C. Hudak, a newly-licensed attorney, did provide an affidavit in the state habeas proceeding responding to the claims, in relevant part, as follows:

On July 22, 2013, I met Mr. King for the first time. That morning, prior to jury selection, he provided me with the background of the case, the nature of the defense strategy, and introduced me to [petitioner]. We began to review juror information forms, so that he could identify individuals that he wanted to focus on. Later that day, jury selection occurred. My task was to observe facial reactions and note responses. I discussed with Mr. King his choices of peremptory strikes, and two jurors' potential grounds for dismissal for cause. Mr. King made the ultimate selections, and a jury was empaneled. I was given a research assignment prior to the trial the next day, to confirm the necessary elements of self-defense in one's vehicle.
During the trial itself, my role was limited to taking notes and observing the jury. I was not there to actively try the case, but to learn. I was asked, at one point, to review [petitioner]' s medical records, to double-check his own analysis. Such notes as I did take that week were returned to Mr. King at the conclusion of the trial, as part of his document retention policies, along with copies of [petitioner]'s medical records.
Throughout the week, Mr. King would offer some of his insights to me. After Jake Rhea's testimony, he commented that the witness had testified extremely well, especially given his young age and the overall situation, and that his own cross-examination of him was measured against the image of how it would play to a jury. Mr. King had said that he wanted to essentially move the jury past Jake Rhea's testimony. He did not specifically tell rne whether a lack of objection to the prosecutor's closing argument was a part of this strategy or not, and I am not making any inferences to that end.
Mr. King made no comment to me about Detective Quintana's testimony or to references about references to Mr. Rhea as the "victim." Mr. King made no comment to me about his impressions on the issue of the police opinion testimony on the truth/falsity of [petitioner]'s testimony, nor did he comment about the police opinion testimony on whether the complainant inflicted [petitioner]'s injuries.
After Mr. King's motion in limine regarding the evidence collected from [petitioner]'s hangar was denied, the prosecution presented evidence and testimony regarding [petitioner]'s possession of various long guns, which included a photograph of those weapons as found. Mr. King did not object, and the photograph, which was shown to the jury on an overhead display was left up for what seemed, to me, to be an overly long period of time. I asked Mr. King about it, and he noted, in effect, that he could have objected to that, but chose not to, on the basis that he did not want to signal to the jury that that was a point they should pay extra attention to. This was related to my guestion about the display of the picture—I did not ask about the testimony of Steven Seabolt or Detective Quintana in particular, and I do not know, either way, whether a lack of objection to their testimony was strategic on this point.
Upon the conclusion of the trial, I returned all papers from the case to Mr, King, and had no discussions with him about the trial.

(SHR 130-32.}

         Petitioner submitted the affidavit of attorney Brian W. Wice, an expert witness in post-conviction writs of habeas corpus and motions for new trials on the area of ineffective assistance of counsel, wherein Wice averred:

         1-2. Detective Quintana's Opinion Testimony I am of the professional opinion that it was objectively deficient conduct under prevailing professional norms for trial counsel not to file a motion in limine and object to Detective Quintana's opinion testimony that:

• She did not believe [petitioner]'s story that the "victim" tried to crawl inside the truck to pull him out and that the "victim" did not tell her anything that differed from what she believed happened.
• She did not believe that the complainant inflicted [petitioner]'s injuries because, had a man the complainant's size punched [petitioner], she would have expected to see "significant" facial injuries.

         In a case such as this where the credibility of the accused and the complainant is the central issue, I can conceive of no sound trial strategy that any reasonable lawyer would employ that could explain not filing a motion in limine to exclude this patently inadmissible and prejudicial testimony. Neither can I imagine any sound trial strategy that any reasonable lawyer would employ that would explain not making a timely and specific objection to this testimony in the event the trial court denied the motion in limine and opted to admit it. There was no tactical downside to filing a motion in limine and securing a ruling outside the jury's presence and renewing that objection before the jury. Not doing so produced no tactical benefit.

         3. Repeated Prosecutorial References to the "Victim"

         I am of the professional opinion that it was objectively deficient conduct under prevailing professional norms for trial counsel not to file a motion in limine and object to repeated references by the prosecutor to the complainant as the "victim." Not only is the use of the term "victim" one that impermissibly pre-supposes that an offense has been committed, and constitutes an improper comment on the weight of the evidence, it is inherently prejudicial in a case such as this where the defense raised is self-defense, and where the credibility of the parties is paramount. I can conceive of no sound trial strategy that any reasonable lawyer would employ that could explain not filing a motion in limine to exclude these repeated references. Neither can I imagine any sound trial strategy that any reasonable lawyer would employ that would explain not making a timely and specific objection to this testimony in the event the trial court denied the motion in limine and opted to admit it. There was no tactical downside to filing a motion in limine and securing a ruling outside the jury's presence and renewing that objection before the jury. Not doing so produced no tactical benefit.

         4. Testimony that [Petitioner] Concealed Loaded Long Guns in his Apartment

         I am of the professional opinion that it was objectively deficient conduct under prevailing professional norms for trial counsel not to file a motion in limine and object to testimony from Investigator Seabolt that [petitioner] concealed loaded long guns in his apartment as well as Detective Quintana's testimony that she had never seen loaded guns hidden under bed covers and that this made her nervous. Because I believe that this testimony did not make more or less likely a fact of consequence in [petitioner]'s trial, it was irrelevant and inadmissible. As with the admission of any extraneous offense, this testimony was calculated to impress upon jurors the notion that [petitioner] was a criminal and bad person generally. I can conceive of no sound trial strategy that any reasonable lawyer would employ that could explain not filing a motion in limine to exclude these repeated references. Neither can I imagine any sound trial strategy that any reasonable lawyer would employ that would explain not making a timely and specific objection to this testimony in the event the trial court denied the motion in limine and opted to admit it. There was no tactical downside to filing a motion in limine and securing a ruling outside the jury's presence and renewing that objection before the jury. Not doing so produced no tactical benefit.

         5. The Prosecutor's Opinion that the Complainant's Son was Telling the Truth

I am of the professional opinion that it was objectively deficient conduct under prevailing professional norms for trial counsel not to object to the prosecutor's opinion that the complainant's son was telling the truth when he testified. I can conceive of no sound trial strategy that any reasonable lawyer would employ that would explain trial counsel's failure to object to improper prosecutorial argument of this type. There was no tactical downside to making a timely and specific objection to this argument, requesting an instruction to disregard it, and then, if necessary, requesting a mistrial. Not preserving error in the face of this improper prosecutorial argument produced no tactical benefit.

(SHR 211.)

         Based upon the documentary record, the pleadings, counsel's affidavits, and two teleconferences, the state habeas court entered the following relevant factual findings and legal conclusions, which although numerous are included to assist the reader:

         FINDINGS OF FACT

General Facts
6. King committed suicide on June 19, 2017.
7. King's death was unforeseen.
8. On August 28, 2017, a teleconference was held between the court, [petitioner]'s counsel ("Mr. Schaffer"), and the State's counsel ("Ms. Jacobs").
9. During the August 28, 2017, teleconference, the circumstances regarding Mr. Schaffer's attempts to get information from King were discussed.
10. [Petitioner] did not request a record of the August 28, 2017, teleconference be made, and no record was made.
11. On October 24, 2017, a teleconference was held between the court, Mr. Schaffer, and Ms. Jacobs.
12. During the October 24, 2017, teleconference, the typical experiences and procedures of [petitioner]' s counsel and the Tarrant County court system were discussed.
13. [Petitioner] did not request a record of the October 24, 2017, teleconference be made, and no record was made.
14. During the August 28, 2017, and October 24, 2017, teleconferences, this Court learned the following:
• During the direct appeals process, Mr. Schaffer contacted King and requested that he respond to [petitioner]'s ineffective assistance of counsel concerns.
• King refused to respond to Mr. Schaffer's questions.
• As part of his normal course of business, Mr. Schaffer contacts every attorney against whom he anticipates raising an ineffective assistance of counsel claim.
• At the current time, only about fifty percent of the attorneys contacted respond to Mr. Schaffer's requests for information.
• Early in the writ proceedings, Mr. Schaffer contacted Ms. Jacobs regarding his motion for an evidentiary hearing.
• Ms. Jacobs advised Mr. Schaffer that the State would first request an affidavit from King before deciding whether to join in his motion for an evidentiary hearing.
15. The fact that King did not respond to Mr. Schaffer's questions is not unique to King.
16. This Court is aware that, in Tarrant County, the routine practice is for the trial court to wait to make a decision on whether to hold a hearing until after affidavits are ordered, received from counsel, and considered by the court.
17. This Court is aware that, in the last eight years, almost all, if not all, hearings held in Tarrant County on article 11.07 writ proceedings were not ordered until after ...

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