United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR UNITED STATES DISTRICT JUDGE.
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Petitioner, Janice Acevedo,
a former state prisoner who was confined in the Correctional
Institutions Division of the Texas Department of Criminal
Justice (TDCJ) when the petition was filed, 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.
October 20, 2017, in the 432nd Judicial District Court,
Tarrant County, Texas, No. 1505172D, Petitioner pleaded
guilty pursuant to a plea bargain agreement to one count of
illegal voting, a second-degree felony, and was sentenced to
four years' confinement in TDCJ, the sentence to run
concurrently with her four-year sentence in No. 1453889D for
felony DWI with a deadly weapon. SHR-01 5, ECF No. 20-6.
Petitioner did not directly appeal the judgment of conviction
but filed two relevant state habeas-corpus applications
challenging the conviction and sentence. The first was denied
by the Texas Court of Criminal Appeals without written order
on the findings of the trial court and the second was
dismissed for failure to comply with the state's form
requirements. Id. at 19-26; SHR-03 at 19-39; Actions
Taken, ECF Nos. 20-1 & 20-15. By way of this petition,
Petitioner challenges only her conviction for illegal voting
in No. 1505172D. Pet'r's Resp. to Supp. Order to Show
Cause 1, ECF No. 16.
raises four grounds for relief, which fall within the
following general categories:
(1) ineffective assistance of counsel (2) “due process
of law-miscarriage of justice”;
(3) cruel and unusual punishment; and
(4) illegal search and seizure.
Pet. 6-7, ECF No. 3.
RULE 5 STATEMENT
has accomplished exhaustion of her claims in state court, and
Respondent does not assert that the petition is untimely or
subject to the successive-petition bar.
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. See 28
U.S.C. § 2254(d)(1)-(2); Harrington v. Richter,
562 U.S. 86, 100-01 (2011). 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. It is the petitioner's
burden to rebut the presumption of correctness through clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
Finally, 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, ___ U.S. ___, 138 S.Ct.
1188, 1191-92 (2018).
Ineffective Assistance of Counsel
her first ground, Petitioner claims that she received
ineffective assistance of trial counsel, David ...