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Payne v. Davis

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

September 16, 2019

LATRAIL PAYNE, TDCJ #2051862 Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.



         Latrail 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.[1] The respondent, Lorie Davis, has answered with a motion for summary judgment, arguing that Payne is nat entitled to the relief he seeks.[2] Payne has filed a response.[3] Also pending before the Court are Payne's motion for discovery and motion to exclude relevant evidence.[4]

         Based 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.

         I. Procedural Background and Claims

         Payne 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.

         The 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).

         In 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.

         In his 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 co-defendant;
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.[5]

         The 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.

         II. Factual Background

         On June 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.

         Although 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.

         Based 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.

         Approximately 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.

         III. The Applicable Legal Standards

         Payne's 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).

         A state 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.

         Id. at 102-03 (emphasis added; internal citations omitted).

         AEDPA 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 omitted).

         The 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).

         Finally, 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).

         IV. Discussion

         A. The Unexhausted and Procedu rally Barred Claims

         Payne 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.[6]

         A 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 ...

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