United States District Court, W.D. Texas, San Antonio Division
DOMINIC ANDERSON, TDCJ No. 02028320, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE
the Court are pro se Petitioner Dominic
Anderson's Second Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 16) and
Respondent Lorie Davis's Answer (ECF No. 17). Having
reviewed the record and pleadings submitted by both parties,
the Court concludes Petitioner is not entitled to relief
under the standards prescribed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). See 28
U.S.C. § 2254(d). Petitioner is also denied a
certificate of appealability.
facts of Petitioner's case were accurately summarized by
the Texas Fourth Court of Appeals on direct appeal:
The complainant, A.T., and [Petitioner] lived together.
According to A.T., after [Petitioner] saw a message A.T.
received from another man, [Petitioner] followed her into a
bathroom stall at a restaurant and hit her. A.T. also stated
[Petitioner] hit her in the face and pinched her breasts in
the car after leaving the restaurant, and, on the drive home
after stopping at a friend's house, [Petitioner] punched
A.T. in her eye four times. After returning home, A.T.
further testified [Petitioner] repeatedly pinched her and
pulled her hair and also forced her to engage in anal sex.
The following day, A.T. told her sister what had occurred.
The police were called, and [Petitioner] was arrested.
A.T. underwent a sexual assault exam, and the sexual assault
nurse examiner testified the bruises on A.T.'s breasts
were severe and were inflicted using a lot of force. The
nurse examiner also testified A.T. had a tear in her anus
caused by a great deal of physical force or blunt force
trauma. Finally, the nurse examiner testified A.T.'s
injuries were too severe to have been caused by "rough
sex." Pictures of A.T.'s injuries were introduced
[Petitioner] testified in his defense, stating all of his
sexual intercourse with A.T. was consensual and the bruises
were hickeys. [Petitioner] further testified A.T. enjoyed
deviant or rough sex, and she consented to the actions that
caused the marks shown in the pictures. [Petitioner] admitted
he was convicted in 2006 for assault family violence but also
denied assaulting the victim in that case.
After hearing the evidence, the jury found [Petitioner]
guilty of sexual assault and assault family
violence-enhanced. [Petitioner] was sentenced to fifteen
years' imprisonment for the sexual assault and ten
years' imprisonment for the assault family
Anderson v. State, No. 04-15-00573-CR, 2016 WL
3773600, at *1 (Tex. App.-San Antonio, July 13, 2016, pet.
ref d); (ECF No. 18-15 at 2).
appealed his convictions and sentences, arguing the trial
court erred by (1) denying his request for a severance; (2)
refusing to allow him to cross-examine the complainant
regarding her probationary status; and (3) denying his
request for a jury instruction. (ECF No. 18-10). The Fourth
Court of Appeals rejected Petitioner's arguments and
affirmed his convictions and sentences in an unpublished
opinion dated July 13, 2016. Anderson, 2016 WL
3773600; (ECF No. 18-15). The Texas Court of Criminal Appeals
then refused his petition for discretionary review.
Anderson v. State, No. 0951-16 (Tex. Crim. App. Jan.
September 19, 2017, Petitioner filed a state habeas corpus
application challenging the constitutionality of his state
court convictions and sentences. Ex parte Anderson,
No. 87, 567-01 (Tex. Crim. App.) (ECF No. 18-25 at 14). In
the application, Petitioner raised the same allegations he
raised on direct appeal and also alleged that his conviction
for sexual assault violated the Double Jeopardy Clause. The
Texas Court of Criminal Appeals denied Petitioner's state
application without written order on February 14, 2018. (ECF
initiated the instant proceedings on July 3, 2018, when he
placed his initial form petition for federal habeas corpus
relief pursuant to 28 U.S.C. § 2254 in the prison
mailing system. (ECF No. 1 at 10). In his subsequent amended
petition filed November 16, 2018, Petitioner raises the same
four allegations that were rejected in state court: (1) the
trial court erred by denying his request for a severance; (2)
the trial court erred by refusing to allow him to
cross-examine the complainant regarding her probationary
status; (3) the trial court erred by denying his request for
a jury instruction; and (4) his conviction for sexual assault
violated the Double Jeopardy Clause. (ECF No. 16). In her
answer, Respondent relies on the state court's
adjudication of these allegations and argues federal habeas
relief is precluded under the AEDPA's deferential
standard. (ECF No. 17).
Standard of Review
federal habeas petition is governed by the heightened
standard of review provided by the AEDPA. 28 U.S.C.A. §
2254. Under § 2254(d), a petitioner may not obtain
federal habeas corpus relief on any claim that was
adjudicated on the merits in state court proceedings unless
the adjudication of that claim either: (1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as
determined by the Supreme Court of the United States, or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. Brown v. Payton, 544
U.S. 133, 141 (2005). This intentionally difficult standard
stops just ...