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Gillon v. Davis

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

November 19, 2019

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Ricky Charles Gillon, 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 considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         In March 2016 a jury in Tarrant County, Texas, Case No. 1433031R, found Petitioner guilty of aggravated assault of a family member with a deadly weapon and the trial court assessed his punishment at 60 years imprisonment. Clerk's R. 171, ECF No. 13-12. Petitioner's conviction was affirmed on appeal and the Texas Court of Criminal Appeals refused his petition for discretionary review. Docket Sheet 1-2, ECF No. 13-2. Petitioner also filed a post-conviction state habeas-corpus application challenging his conviction, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. SHR[1] 2-17, ECF No. 13-20; Action Taken, ECF No. 13-16.

         The state appellate court summarized the evidence at trial as follows:

Charlene Moore testified that she and [Petitioner] had started dating in May 2014. But roughly two months later, on July 10, 2014, while the two were sitting in her vehicle, Moore told [Petitioner] that she wanted to break up. After they talked inside her Hummer H2 for over half an hour, [Petitioner] went to his pickup truck, returned to Moore's Hummer, and tossed a box containing an engagement ring in Moore's lap. Moore refused the ring; [Petitioner] responded by stabbing her in the neck. Hearing Moore scream, her nephew pulled [Petitioner] out of Moore's car.
[Petitioner] then ran to the Hummer's driver's side, climbed inside through the sunroof, and resumed his attack. A photograph shows that the Hummer's sunroof was large enough for someone to climb into the vehicle with relative ease.
The attack stopped when Moore agreed to drive away with [Petitioner]. Instead, though, Moore drove down the street, made a U-turn, got out of her Hummer, and ran into her house.
Once inside, Moore told her mother to call 9-1-1. Moore then watched [Petitioner] bash her car before fleeing in his pickup.
When the police arrived, they saw a two-inch vertical cut on the left side of Moore's throat that exposed her esophagus. The officers called for medical help, and Moore was eventually transported to the trauma center at John Peter Smith Hospital.
In Moore's car, the police saw blood on the driver's seat, floorboard, and console. On the driver's side floorboard, they found a handle for a straight razor. Outside Moore's car, they found a bloody straight razor.
Moore's nephew told the police that [Petitioner] had attacked Moore. The police went to [Petitioner]'s home, and after a long stand-off, they arrested him there.
While in an ambulance at the scene, [Petitioner] admitted to a detective that he had cut Moore's neck. Inside [Petitioner]'s pickup, the police saw a red stain on the center console that appeared to be blood. They also found a shaving kit containing a box of razor blades on the front seat.
The following day, the detective went to the hospital to meet with Moore. Moore had tape around her neck and a tube attached to her mouth, so the detective instructed Moore to communicate with him by squeezing his hand once for yes and twice for no. Moore responded yes when asked if [Petitioner] was her attacker.

Mem. Op. 2-3, ECF No. 13-3.

         II. ISSUES

         In three grounds for relief, Petitioner claims that: (1) the trial court erred by overruling his objection to the admission of his recorded statement to police; (2) he received ineffective assistance of trial counsel; and (3) he received ineffective assistance of appellate counsel. Pet. 6-7, 19, [2] ECF No. 1.


         Respondent does not believe that Petitioner's claims are unexhausted or that the petition is successive or time-barred. Resp't's Answer 6, ECF No. 14.


         A. 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). This standard is difficult to meet and “stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102.

         Additionally, the statute 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)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The presumption of correctness applies to both express and implied factual findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). It is the petitioner's burden to rebut this presumption by clear and convincing evidence. Id.

         Further, when the most recent state court to consider a constitutional issue provides a “reasoned opinion, ” a federal habeas corpus court must “review[ ] the specific reasons given by the state court and defer[ ] to those reasons if they are reasonable.” Wilson v. Sellers, ___ U.S. ___, 138 S.Ct. 1188, 1191-92 (2018). Under those circumstances, 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. Id. In other words, federal habeas-corpus courts confronted with an unexplained state court decision “are to ‘look ...

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