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Lumley v. Davis

United States District Court, N.D. Texas, Dallas Division

September 3, 2019

JASON DEAN LUMLEY, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

         Petitioner Jason Dean Lumley, a Texas inmate, filed a pro se application for writ of habeas corpus under 28 U.S.C. § 2254. See Dkt No. 3. This resulting action has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge David C. Godbey. The State filed a response opposing relief, see Dkt. No. 19, to which Lumley filed a reply brief. See Dkt. No. 20. For the reasons explained below, the Court should deny Lumley's federal habeas petition.

         Applicable Background

         A jury found Lumley guilty of evading arrest, unauthorized use of a motor vehicle, and two counts of an accident involving injury. See Dkt. No. 15-17 at 130-133. The trial court found the allegations for enhancement to be “true, ” see Dkt. No. 15-19 at 3-10, and sentenced Lumley to fifty years' confinement. See id. On December 17, 2015, the Tenth Court of Appeals affirmed the judgment, as modified. See Lumley v. State, No. 10-15-00267-CR (Tex. App.-Waco December 17, 2015, pet. ref'd), 2015 WL 9256924; Dkt. No. 15-4. The Texas Court of Criminal Appeals (“CCA”) refused Lumley's petition for discretionary review on June 29, 2016. See Dkt. No. 15-13 at 2.

         Lumley filed an application for state writ of habeas corpus claiming constitutionally ineffective assistance of trial and appellate counsel on numerous grounds, and prosecutorial misconduct. See Dkt. No. 16-12 at 6-13 - Dkt. No. 16-13 at 1-2. On October 18, 2017, the CCA denied Lumley's application without a written order on the findings of the trial court without a hearing. Dkt. No. 16-5. On November 22, 2017, the CCA withdrew the previous order, see Dkt. No. 16-21, then denied Lumley's application for state writ of habeas corpus with a written order. See Dkt. No. 16-8.

         In his timely-filed federal habeas application, Lumley raises the following grounds for relief:

         1. Ineffective assistance of counsel by:

a. failing to challenge the State's version of facts,
b. preventing Lumley from testifying,
c. failing to file a motion to suppress,
d. failing to call a witness,
e. failing to raise proper objections,
f. failing to request jury instruction,
g. failing to request a limiting instruction,
h. failing to know the law,
i. failing to raise reasonable suspicion, and
j. failing to raise certain issues on appeal;

         (2) The prosecutor committed misconduct by allowing false and misleading testimony; and

         (3) The CCA incorrectly denied his state habeas application based on findings of facts and conclusions of law that were previously vacated by the trial judge.

         See Dkt. No. 3 at 6-7; Dkt. No. 11. Lumley initially also alleged that his trial counsel was ineffective for failing to raise a violation of the United States Supreme Court's holding in Miranda v. Arizona, 384 U.S. 436, 443 (1966), see Dkt. No. 3 at 6; Dkt. No. at 7, but he subsequently withdrew that claim, see Dkt. No. 20 at 7.

         Legal Standards and Analysis

         I. Claims

         Where a state court has already rejected a claim on the merits, a federal court may grant habeas relief on that claim only if the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         A state court adjudication on direct appeal is due the same deference under Section 2254(d) as an adjudication in a state post-conviction proceeding. See, e.g., Dowthitt v. Johnson, 230 F.3d 733, 756-57 (5th Cir. 2000) (a finding made by the CCA on direct appeal was an “issue ... adjudicated on the merits in state proceedings, ” to be “examine[d] ... with the deference demanded by [the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”)]” under “28 U.S.C. § 2254(d)”).

         A state court decision is “contrary” to clearly established federal law if “it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004); see also Lopez v. Smith, 574 U.S.___, 135 S.Ct. 1, 2 (2014) (per curiam) (“We have emphasized, time and time again, that the AEDPA prohibits the federal courts of appeals from ...


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