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Johnson v. Director, TDCJ-CID

United States District Court, E.D. Texas, Sherman Division

September 27, 2019

JEREMY JOHNSON, #1886485
v.
DIRECTOR, TDCJ-CID

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Petitioner Jeremy Johnson, represented by counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims he is entitled to relief because his due process rights were violated and his counsel was ineffective. For the reasons stated below, and after due consideration, the Court will deny the petition.

         PROCEDURAL BACKGROUND

         Petitioner is challenging his Hopkins County conviction for possession of a controlled substance with a deadly weapon, enhanced by two prior felony convictions. Cause No. 1323358A. A jury found him guilty as charged and he was sentenced to sixty years’ confinement. On direct appeal, the Sixth Court of Appeals affirmed the judgment. Johnson v. State, 06-13-00227-CR, 2014 WL 4695063 (Tex.App. – Texarkana, Sept. 22, 2014). The Texas Court of Criminal Appeals (“TCCA”) refused Petitioner’s petition for discretionary review on February 11, 2015. It also denied Petitioner’s state writ of habeas corpus without written order on June 15, 2016. Ex parte Johnson, No. WR-84, 618-01, 2016 WL 4916824 (Tex.Crim.App. June 15, 2016). Petitioner filed the instant petition on September 13, 2016, asserting he is entitled to relief based upon both exhausted and unexhausted or procedurally barred claims (unexhausted or procedurally barred claims appear in italics) as grounds for relief:

1. Petitioner’s due process rights were violated when the trial judge communicated ex parte with the jury and allowed the jury to view the DVD - State’s Exhibit #1 a. outside of Petitioner’s presence.
b. Petitioner and his counsel were denied the right to be present during a critical stage of trial, which amounted to constitutional error.
c. Petitioner was denied his right to counsel during a critical stage of trial, amounting to structural error, and reversible under United States v. Cronic, 466 U.S. 648, 659 (1984).
2. Petitioner’s due process rights were violated when the trial court allowed the State to question a witness concerning her knowledge of Petitioner’s parole status.
3. Petitioner’s right to effective assistance of counsel was violated when counsel failed to object to the ex parte communication of the judge
a. and failed to object to Petitioner’s exclusion from the courtroom during the jury’s review of the DVD, marked as State’s Exhibit #1.

         Respondent filed a response, asserting Petitioner’s issues are procedurally barred and are without merit. Petitioner did not file a reply.

         FACTUAL BACKGROUND

         The Sixth Court of Appeals provided the facts of the case in its opinion:

When the Hopkins County Sheriff's Office received a telephone call from Steven Coursey reporting that a tan 2004 Cadillac sedan with license plate number BN4V7110 was occupied by three white males and carrying a firearm and narcotics in the area near Highway 1567 and Highway 11 East, Deputy Dennis Findley, among others, was dispatched to the area. Unable to locate the suspicious vehicle in the identified area, Findley personally called Coursey, who advised that the vehicle might be located at 1429 Church Street in Sulphur Springs. Coursey explained that the narcotics and gun were located in the trunk of the vehicle.
On learning this information, Findley drove to the Church Street address, but did not locate the vehicle. Findley then received a call from a fellow deputy that the suspicious vehicle was traveling on Pipeline Road. Findley soon spotted the vehicle at the corner of Pipeline Road and North Jackson Street, and he saw the vehicle head north on North Jackson Street towards Church Street. As the vehicle approached the intersection of Church Street and North Jackson Street, Findley observed the vehicle roll through the stop sign and continue north on Church Street. At that point, Findley activated the lights and siren on his patrol car. The tan Cadillac, which matched Coursey's description, pulled into the driveway of 1429 Church Street.
Based on the information that the vehicle was carrying a gun and narcotics, a felony traffic stop was initiated. Findley and his fellow officers at the location exercised extreme caution by approaching the vehicle with their service weapons drawn in a ready position. Robin Breckenridge, Johnson's mother and the driver of the tan Cadillac, was removed and handcuffed together with Johnson, who had been seated in the front passenger seat, and Brent Pelky, who had been seated in the back passenger seat.
When Findley removed Pelky from the back passenger seat of the car, he immediately noticed a “gun rug”-a pouch used for housing a gun-which confirmed the information he received from dispatch and from Coursey that a firearm was in the vehicle. After obtaining what he believed to be Breckenridge's consent to search the vehicle, Findley asked Ryan Haley, a K–9 handler for the Texas Department of Public Safety (DPS), to “run his dog” on the car. Thereafter, officers conducted a manual search of the vehicle, which uncovered methamphetamine and a .38 caliber handgun, both of which were concealed on opposite sides in the vehicle's trunk.

Johnson, 2014 WL 4695063, at *1.

         STANDARD FOR FEDERAL HABEAS CORPUS RELIEF

         The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1354, 1367 (5th Cir. 1993). Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). In the course of reviewing state proceedings, a federal court does not sit as a super state appellate court. Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).

         The prospect of federal courts granting habeas corpus relief to state prisoners has been further limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The new provisions of Section 2254(d) provide that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) was contrary to federal law then clearly established in the holdings of the Supreme Court; (2) involved an unreasonable application of clearly established Supreme Court precedent; or (3) was based on an unreasonable determination of the facts in light of the record before the state court. See Harrington v. Richter, 562 U.S. 86, 97-98 (2011). The statutory provision requires federal courts to be deferential to habeas corpus decisions on the merits by state courts. Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).

         A decision by a state court is “contrary to” the Supreme Court’s clearly established law if it “applies a rule that contradicts the law set forth” in the Supreme Court’s cases. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A federal court’s review of a decision based on the “unreasonable application” test should only review the “state court’s ‘decision’ and not the written opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc). “Under § 2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas corpus court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411. Rather, that application must be objectively unreasonable. Id. at 409. The standard is satisfied only if “reasonable jurists considering the question would be of one view that the state court ruling was incorrect.” Davis v. Johnson, 158 F.3d 806, 812 (5th Cir 1998) (internal quotation marks and citations omitted).

         The trial court’s factual findings are entitled to a presumption of correctness unless the petitioner can rebut the presumption with clear and convincing evidence to the contrary. Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001). This presumption of correctness also applies to unarticulated findings that are necessary to the state court’s conclusions of mixed law and fact. Id. at 948 n. 11. This presumption is especially strong where the trial judge and the state habeas judge are the same. Miller-El v. Johnson, 261 F.3d 445, 449, 454 (5th Cir. 2001) (citing Clark v. Johnson, 202 F.3d 760, 764, 766 (5th Cir. 2000)). A state application that is denied without written order by the TCCA, as in the present case, is an adjudication on the merits. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997) (holding a “denial” signifies an adjudication on the merits while a “dismissal” means the claim was declined on grounds other than the merits). Additionally, federal habeas relief is foreclosed if a claim: (1) is procedurally barred as a consequence of a failure to comply with state procedural rules, Coleman v. Thompson, 501 U.S. 722 (1991); (2) seeks retroactive application of a new rule of ...


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