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Kimble v. Davis

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

September 16, 2019

ANDRE D. KIMBLE, 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, Andre D. Kimble, 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

         On October 7, 2015, a jury in Tarrant County, Texas, Case No. 1132560R, found petitioner guilty of assault of a family or household member with a previous conviction and assessed his punishment at 15 years' confinement and a $4000 fine. (Clerk's R. 104, doc. 15-10.) Petitioner's conviction was affirmed on appeal and the Texas Court of Criminal Appeals refused his petition for discretionary review. (Docket Sheet 1-2, doc. 15-2.) Petitioner also sought post-conviction state habeas-corpus relief by challenging his conviction in two state habeas applications. The first application was dismissed by the Texas Court of Criminal Appeals because the judgment had not yet become final. The second application was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (SHR[1]2-18 & Action Taken, docs. 15-21 & 15-19, respectively.) This federal habeas petition followed.

         At trial, Patricia Dawn Vender testified that she and petitioner were in a romantic relationship and that petitioner was living in her home. (Reporter's R., vol. 3, 22-24, doc. 15-7.} Petitioner was suspicious of her and would not allow her to go out of the house without him. (Id. at 25.) Sometime in the morning or early afternoon on December 18, 2014, she went outside to get firewood near the "mother-in-law" house in the backyard, which they used to heat their room. (Id.) Petitioner thought he heard her talking to someone and went outside, confronted her, and accused her of lying and "messing around with" the man staying in the "mother-in-law" house. (Id. at 26.) She then testified:

He grabbed me by my hair, grabbed me by my throat, as always. Pulling me, telling me, you know, basically, that he was going to kill me, that I never do what I say I'm going to do, and who am I out there seeing, am I playing games.
He got me into the house. I had to calm him down. And I always had to talk him out of his anger and I had to make him think that he was the king, you know. That he -- excuse me -- that I'm nothing. That I always had to make it clear to him that I -- that it was my fault, that I was the one wrong, to make him feel good about himself. I had to lie to him for me to be able to get out of the house to be safe.
It was always sex after we fought. So that it would be a reassurance to him that I was going to stay or that I wasn't going to tell on him for him using me.
I -- after we started - after I got him calmed down, I told him that I was going to go down to eat -- I was going to go down to the -- the end of Sargent Street at the smoke shop and I was going to talk to E. about working.

(Id. at 28 -30.} After Vender left, she went to a neighbor's house and the neighbor called 911. (Id. at 30-32.} Vender testified that petitioner's abuse happened often and that when petitioner grabbed her by the face and hair, she felt pain and that when he choked her or grabbed her by the face, he always used his knuckles, not his fingers or fingernails, so "it wouldn't leave marks." (Id. at 30-31, 37, 45.) She admitted that she had prior burglary and theft charges, an outstanding warrant for her arrest in the State of Kansas, and a drug addiction at the time of the incident, (Id. at 34-35.} She also testified that due to her son's murder and her husband's illness, and "past traumas, [she has] a lot of memory issues, a lot of disabilities." (Id. at 38.)

         In addition to Vender's testimony, the state introduced pictures of her injuries, the 911 tape, and the testimony of the responding officer. (Id. at 17, 32-33; State's Exs. 2-4, doc. 15-9.) The officer testified that he met Vender a block from her house at the smoke shop and that she was scared, crying, and nervous to go back home. (Reporter's R., vol, 3, 50, 15-7.) He testified that she had bruises all over her body-some looked new like they occurred from that day, some looked like they might have been a day old, and some looked like they could be a week old. (Id. at 51.} She also had "finger marks on her arm" and burn marks on her hand. (Id.)

         After being found guilty, petitioner pleaded true to the repeat-offender notice in the indictment and stipulated to a laundry list of prior offenses. (Id. at 77-78, 82-86; State's Exs. 1, 7, 8, doc. 15-9.)

         II. ISSUES

         By way of this petition, petitioner raises claims falling within the following general categories:

(1) ineffective assistance of counsel (grounds one, three, four, and six);
(2) admissibility of statements and other evidence (ground two); and
(3) prosecutorial misconduct (ground five).

(Pet. 6-8, doc. I.[2])

         III. RULE 5 STATEMENT

         Respondent does not allege that the petition is barred by successiveness or the federal statute of limitations, but she does believe that two of his ineffective-assistance-of-counsel claims under category (1), above, are unexhausted and procedurally barred. (Resp't's Answer 5-7, doc. 16.)

         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)(l) 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 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, 138 S.Ct. 1188, 1191-92 (2018) .

         V. DISCUSSION

         (1) Ineffective Assistance of Counsel

         Under grounds one, three, four, and six, petitioner asserts that his ...


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