United States District Court, N.D. Texas, Fort Worth Division
ANDRE D. KIMBLE, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
FACTUAL AND PROCEDURAL HISTORY
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. (SHR2-18 & Action Taken, docs. 15-21 &
15-19, respectively.) This federal habeas petition followed.
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.)
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.)
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.)
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
(3) prosecutorial misconduct (ground five).
(Pet. 6-8, doc. I.)
RULE 5 STATEMENT
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.)
STANDARD OF REVIEW
§ 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,
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,
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) .
Ineffective Assistance of Counsel
grounds one, three, four, and six, petitioner asserts that