United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. BENNETT UNITED STATES DISTRICT JUDGE
Payne, a Texas state inmate, has filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254, to challenge
his 2316 state-court conviction for aggravated robbery with a
deadly weapon. The respondent, Lorie Davis, has answered
with a motion for summary judgment, arguing that Payne is nat
entitled to the relief he seeks. Payne has filed a
response. Also pending before the Court are
Payne's motion for discovery and motion to exclude
on careful consideration of the pleadings, the motion, the
record, and the applicable law, this Court finds that there
are no genuine factual disputes material to deciding the
claims and that the respondent is entitled to summary
judgment as a matter of law. The reasons are explained below.
Procedural Background and Claims
is in custody of the Texas Department of Criminal Justice -
Correctional Institutions Division (TDCJ) as the result of a
state-court felony conviction in Harris County Cause Number
1471584. Following a jury trial, Payne was convicted of
aggravated robbery with a deadly weapon. On February 24,
2016, the jury sentenced Payne to a 12-year prison term.
First Court of Appeals of Texas affirmed Payne's
conviction on direct appeal. Payne v. State, No.
01-16-00170-CR, 2017 WL 117325 (Tex. App.-Houston [IstDist.]
Jan. 12, 2017). The Texas Court of Criminal Appeals refused
Payne's petition for discretionary review. Payne v.
State, No. PD-0088-17. (Tex. Crim. App. March 22, 2017).
January 2017, Payne filed his first application for a state
writ of habeas corpus under Article 11.07 of the Texas Code
of Criminal Procedure, challenging his conviction. Ex
parte Payne, Application No. WR-86, 773-01. In June
2017, the Court of Criminal Appeals dismissed the application
because Payne's conviction was not yet final.
Id. In June 2017, Payne filed his second state
habeas application. Ex parte Payne, Application No.
WR-86, 773-02. The Court of Criminal Appeals denied the
application, without written order or a hearing, on the
findings of the trial court in May 2018. Id.
federal habeas petition, executed cm June 20, 2018, Payne
raises the following grounds for relief:
1. The trial court engaged in judicial misconduct, or abused
its discretion, by denying Payne's motion to remove
counsel from his case.
2. Trial counsel rendered ineffective assistance because he:
a. failed to conduct an independent investigation into
Payne's alibi and other exculpatory evidence;
b. failed to interview witnesses and Payne's
c. failed to present any defense; d. failed to adequately
cross-examine the State's witnesses; and e. failed to
file a motion for discovery.
3. The State engaged in prosecutorial misconduct by
withholding exculpatory evidence.
respondent argues that the petition should be denied because
Payne's claims are unexhausted, procedurally barred, or
without merit. Each claim and argument is analyzed against
the record and the applicable legal standards.
11, 2015, Dashana Waller was working as a manager at a Game
Stop store in Houston, Texas. While Waller was dusting in the
back of the store, a man, later identified as Payne, walked
inside and pulled a mask down over his face. Payne then
pulled out a gun and pointed it at Waller as he started
walking towards her. Payne told Waller to give him everything
in the register. Waller walked to the register and handed
Payne all of the money. The money included a rubber-banded
bundle of money with a GPS tracker designed to immediately
notify law enforcement and the store's district manager
when the bundled money is removed from the register. Payne
took the money and walked out of the store, after turning
around once to look at Waller again.
security usually patrols the perking lot area outside the
store, Waller did not see them during the robbery. After
Payne left the store, Waller immediately called 911 and
pushed the security button located under the register. A
police officer arrived at the store in under five minutes. At
that time, Waller provided a description of the robber's
attire and build. She was unable to otherwise identify Payne
because he was wearing a mask.
on the report of an aggravated robbery and the signal from
the GPS tracker, the police conducted a traffic stop of a
vehicle and detained both the driver and the passenger. There
was a pile of money on the floor in plain view, along with a
red shirt and hat previously identified by Waller and visible
on a surveillance video from GameStop. The police also
discovered a firearm in between the console and the front
passenger seat and a black mask near the shirt and hat.
twenty minutes after Waller provided a description of the
suspect, the police informed Waller that they had apprehended
the person they believed had committed the robbery. That same
day, the police returned all the money, along with the GPS
tracker, that had been taken from the GameStop register.
The Applicable Legal Standards
petition is governed by the applicable provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). 28 U.S.C. § 2254. Under AEDPA, federal habeas
relief cannot be granted on legal issues adjudicated on the
merits in state court unless the state adjudication was
contrary to clearly established federal law as determined by
the Supreme Court, or involved an unreasonable application of
clearly established federal law as determined by the Supreme
Court. Harrington v. Richter, 562 U.S. 86, 98-99
(2011); Williams v. Taylor, 529 U.S. 362, 404-05
(2000); 28 U.S.C. §§ 2254(d)(1), (2). A state-court
decision is contrary to federal precedent if it applies a
rule that contradicts the governing law set forth by the
Supreme Court, or if it confronts a set of facts that are
materially indistinguishable from such a decision and arrives
at a result different from the Supreme Court's precedent.
Early v. Packer, 537 U.S. 3, 7-8 (2002).
court unreasonably applies Supreme Court precedent if it
unreasonably applies the correct legal rule to the facts of a
particular case, or unreasonably extends a legal principle
from Supreme Court precedent to a new context where it should
not apply, or unreasonably refuses to extend that principle
to a new context where it should apply. Williams,
529 U.S. at 409. In deciding whether a state court's
application was unreasonable, this Court considers whether
the application was objectively unreasonable. Id.
"It bears repeating that even a strong case for relief
does not mean the state court's contrary conclusion was
unreasonable." Richter, 562 U.S. at 102. As
stated by the Supreme Court in Richter,
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short
of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings. It preserves
authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court's decision conflicts with this Court's
precedents. It goes no farther. Section 2254(d) reflects the
view that habeas corpus is a "guard against extreme
malfunctions in the state criminal justice systems," not
a substitute for ordinary error correction through appeal.
at 102-03 (emphasis added; internal citations omitted).
affords deference to a state court's resolution of
factual issues. Under 28 U.S.C. § 2254(d)(2), a decision
adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual
grounds unless it is objectively unreasonable in light of the
evidence presented in the state court proceeding.
Miller-El v. Cockrell, 537 U.S. 322, 343 (2003). A
federal habeas court must presume the underlying factual
determination of the state court to be correct, unless the
petitioner rebuts the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see
also Miller-El, 537 U.S. at 330-31. This presumption
extends not only to express findings of fact, but to the
implicit findings of the state court as well. Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citations
respondent has moved for summary judgment. Summary judgment
is proper when the record shows "no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). In
ordinary civil cases, a district court considering a motion
for summary judgment must construe disputed facts in a light
most favorable to the nonmoving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The
evidence of the norimovant is to be believed, and all
justifiable inferences are to be drawn in his favor.").
"As a general principle, Rule 56 of the Federal Rules of
Civil Procedure, relating to summary judgment, applies with
equal force in the context of habeas corpus cases."
Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).
However, a court on summary judgment must view the evidence
through "the prism of the substantive evidentiary
burden." Anderson, 477 U.S. at 254. Congress,
through AEDPA, has constricted both the nature and
availability of habeas review. This Court, therefore, applies
general summary judgment standards only insofar as they do
not conflict with the language and intent of AEDPA. See
Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002)
("[Rule 56] applies only to the extent that it does not
conflict with the habeas rules."), abrogated on
other grounds by Tennardv. Dretke, 542 U.S. 274 (2004).
Payne is a pro se petitioner. Pro se habeas
petitions are construed liberally and are not held to the
same stringent and rigorous standards as pleadings lawyers
file. See Martin v. Maxey, 98 F.3d 844, 847 n.4 (5th
Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834
(5th Cir. 1988); Woodall v. Foti, 648 F.2d 268, 271
(5th Cir. Unit A June 1981). This Court broadly interprets
Payne's state and federal habeas petitions. Bledsue
v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).
The Unexhausted and Procedu rally Barred Claims
raises two of his claims in federal court for the first time.
The claims not previously raised include that: (1) trial
counsel was ineffective for failing to file a motion for
discovery; and (2) the State engaged in prosecutorial
misconduct by withholding exculpatory evidence in violation
of Brady. The respondent contends that these claims
are unexhausted and procedurally defaulted.
federal court may not grant habeas corpus relief on behalf of
a person in state custody unless "the applicant has
exhausted the remedies available in the courts of the
State." 28 U.S.C. § 2254(b)(1)(A);
O'Sullivan v. Boerckel,526 U.S. 838, 842 (1999)
("Before a federal court may grant habeas relief to a
state prisoner, the prisoner must exhaust his remedies in
state court. In other words, the state prisoner must give the
state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas
petition."). To satisfy this requirement, a claim must
be "fairly presented" to the state's highest
court for review. See Fisher v. Texas,169 F.3d 295,
302 (5th Cir. 1999) (citing Whitehead v. Johnson,157 F.3d 384, 387 (5th Cir. 1984)). The doctrine of
exhaustion "require[s] a state prisoner to present the
state courts ...