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Barber v. Davis

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

January 10, 2020

ANTHONY BARBER, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          REED O'CONNOR UNITED STATES DISTRICT JUDGE

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Anthony Barber, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), 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 June 2013 Petitioner was indicted in Tarrant County, Texas, No. 1324070D, with assault of a family member with a previous such conviction following an altercation with his sister, Kimberly Barber, in April 2013. Clerk's R. 10-11, ECF No. 15-10. In March 2015 he was reindicted in No. 1407138R, and No. 1324070D was subsequently dismissed. Id. at 6-7, 60. Prior to trial, the state agreed to waive one of the two felonies alleged in the habitual-offender notice in the indictment if Petitioner pleaded guilty to the offense. Reporter's R., vol. 2, 4, ECF No. 15-6. Subsequently, on September 16, 2015, Petitioner pleaded guilty to the offense and true to one of the two felony convictions alleged in the habitual-offender notice, and, following a trial on punishment, a jury sentenced Petitioner to 17 years' confinement. Id. at 93. Petitioner appealed, but the state appellate court affirmed the trial court's judgment and the Texas Court of Criminal Appeals refused his petition for discretionary review. Docket Sheet 1-2, ECF No. 15-2. Petitioner also challenged his conviction and sentence in a post-conviction state habeas-corpus application, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. Action Taken, ECF No. 19-1.

         II. ISSUES

         Petitioner raises the following four grounds for federal habeas relief:

(1) the state failed to make available all exculpatory evidence for counsel to investigate;
(2) he was denied his Sixth Amendment right to effective assistance of counsel by compulsion to enter his guilty plea;
(3) his guilty plea was induced by coercion due to trial counsel's ineffectiveness and misrepresentation; and
(4) he was denied his Sixth Amendment right to effective assistance of counsel by the failure to urge motions from previous proceedings and obtain a ruling in the reindicted case.

Pet. 6-7, ECF No. 1.

         III. RULE 5 STATEMENT

         Respondent believes that Petitioner's claims are exhausted and that the petition is neither barred by limitations or a successive petition. Resp't's Am. Resp. 5, ECF No. 18.

         IV. 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. 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).

         V. DISCUSSION

         A. Ineffective Assistance of Counsel and Waiver

         A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. Const. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). To prevail on an ineffective-assistance claim in the context of a guilty plea, Petitioner must demonstrate that his plea was rendered unknowing or involuntary by showing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983); see also Strickland, 466 U.S. at 687. In assessing the reasonableness of counsel's representation, “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 690).

         Additionally, by entering a knowing, intelligent, and voluntary guilty plea, a defendant waives all nonjurisdictional defects in the proceedings preceding the plea, including all claims of ineffective assistance of counsel that do not attack the voluntariness of the guilty plea. Smith, 711 F.2d at 682; Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981). A guilty plea is knowing, voluntary, and intelligent if done with sufficient awareness of the relevant circumstances and likely consequences surrounding the plea. Brady v. United States, 397 U.S. 742, 748 (1970). If a challenged guilty plea is knowing, voluntary and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995).

         The Court construes Petitioner's grounds two and three as attacking the voluntariness of his guilty plea. Petitioner asserts that he was compelled and/or coerced to accept the stipulated plea agreement because counsel failed to adequately prepare for trial by failing to secure exculpatory testimony from eyewitnesses and because counsel advised him “based on the temperance of the judge in communicating terms of plea agreements that resulted in unfilfilled [sic] promises and duties.” Pet. 6-7, ECF No. 1. Petitioner raised his claims in his state habeas-corpus application, which the trial court referred to a magistrate judge for findings and conclusions of law. SHR[1] 17-24, 73, ECF No. 19-2. Toward that end, the magistrate judge ordered Petitioner's lead counsel Lisa Haines and “second-chair” counsel Bryan Wilson to respond to Petitioner's claims via affidavit. Haines filed a thorough affidavit detailing her representation of Petitioner, which is set out, in relevant part, below (any spelling, grammatical, and/or punctuation errors are in the original):

I was appointed to represent [Petitioner] on the charge of third-degree felony Assault-Bodily Injury of Family Member with a Prior on July 2, 2013 in Cause Number 1324070. It was reindicted under the above Tarrant County Cause Number 1407138 on March 19, 2015. I was subsequently appointed to the re-indicted case on March 27, 2015. The case was enhanced to habitual offender notice with prior convictions of ABI-FM with Prior and Possession of a Controlled Substance with Intent to Deliver 4 - 200 grams Penalty Group One. [Petitioner] also had two previous felony convictions for Assault-Bodily Injury of Family Member with a Prior in 2005 and 2009 and eight previous misdemeanor convictions, all of which could be presented the jury upon conviction, in the punishment phase.
I met with [Petitioner] ten times at the Tarrant County Jail prior to trial on September 14, 2015. [Petitioner] was an intelligent and articulate client. Throughout the pendency of the case. [Petitioner] was actively involved in preparing our defense and preparing cross examination of State witnesses and direct examination of our witnesses.
[Petitioner] alleges that the outcome would have been better for him if he had not plead guilty and proceeded to trial as he did on September 14, 2015. But had [Petitioner] plead not guilty, the evidence the State presented at trial established [Petitioner]'s guilty while our defense witnesses ultimately did not provide details that discredited Kimberly Barber and Rochelle Barber's description of the incident. [Petitioner] would have then faced a range of punishment that started at twenty five years in TDC. He received a sentence of seventeen years TDC in our jury trial, because he plead guilty in exchange for limiting the range of punishment to a second-degree felony (two - twenty years TDC).
Procedural Summary:
With trial scheduled to commence of Monday, September 14, 2015, [Petitioner] was arraigned on Friday, September 11, 2015 on the charge of Assault Bodily Injury - Family Member with a Prior Felony Conviction, enhanced to Habitual Offender. [Petitioner] plead not guilty. The following Monday, September 14. 2105, jury selection was scheduled to begin at 9:00 a.m. But prior to jury selection that morning, the State made an offer to reduce the range of punishment to second degree felony (waiving one of the prior convictions listed in the habitual enhancement) in return for [Petitioner] pleading guilty to the felony ABI-FM with Prior and one of the convictions listed in the habitual enhancement. After discussion with [Petitioner] in the holdover cell. [Petitioner] chose to plead guilty.
The following day, [Petitioner]'s daughter, Kashell Woodard showed up for trial. Kashell had spoken with our investigator three times in 2014 but failed to attend witness meetings we held at the family home in 2014 and 2015. She failed to return our many calls during the pendency of the case. When l spoke with her at the courthouse on September 15, 2015, she said that the victim had attempted to strike [Petitioner]. She further stated that the victim had fallen to the ground as a result of the momentum of her swinging arm. Kashell alleged that the victim had caused her own injury. No. other person at the scene had ever described this scenario. In learning this information and after a lengthy discussion with Co-Counsel Bryan Wilson and me, [Petitioner] decided he wanted to withdraw his plea of guilty. His request was presented to the Court. The procedural impact of changing his plea back to not guilty was explained by the Trial Court. Further discussion with counsel occurred after which [Petitioner] chose to continue with the trial (where he had plead guilty to the jury). [Petitioner] chose not to withdraw his guilty plea. The Trial Court instructed the jury to find him guilty. After deliberations, the jury followed the judge's instructions and found [Petitioner] guilty. . . .
. . .
GROUND TWO: [Petitioner] was denied his sixth amendment right to effective assistance of counsel by compulsion to enter his plea of guilt. Counsel for the [Petitioner] stated to the court that she was not prepared to proceed with for trial.
On the first day of trial, before [Petitioner] decided to plead to guilty and accepted the State's Trial offer, the Trial Court read the Indictment in its entirety to [Petitioner]. The Court then asked him many questions to verify this decision was his and his alone. Additionally, the Court questioned [Petitioner] regarding both cases listed in the habitual offender paragraph again to establish it was the [Petitioner]'s own decision to proceed on only the second count in the habitual enhancement.
[Petitioner] was not compelled to change his plea to guilty. [Petitioner] had a very lengthy discussion with co-counsel Bryan Wilson and me about the evidentiary and procedural aspects of the case, the possible advantages, disadvantages and consequences of pleading guilty to the jury in exchange for a lower range of punishment, the advantages, disadvantages and consequences of pleading not guilty and restarting the trial with a range of punishment of 25 years to life in Texas Department of Corrections if convicted.
[Petitioner] made an educated decision to plead guilty to the charge in the indictment and one count in the enhancement. Prior to [Petitioner's] decision to plead guilty, co-counsel Bryan Wilson and I thoroughly discussed with [Petitioner] the State's trial offer to waive the habitual enhancement (range of punishment of 25 years to 99 years/life in TDC) in exchange for [Petitioner]'s guilty plea to the indictment and one enhancement (Possession of a Controlled Substance with Intent to Deliver 4-200 grams Penalty Group 1). [Petitioner] understood that the State would waive the other enhancement of Assault Bodily Injury to Family Memher with Prior Conviction, thus limiting [Petitioner]'s the [sic] range of punishment of 2 - 20 years in Texas Department of Corrections. We talked at length about continuing with the jury trial on guilt/innocence with the habitual range of punishment if found guilty. We also talked about the new Trial offer of pleading guilty but with the reduced range of punishment. [Petitioner] was an active participant in the discussion. Since shortly after his arrest, he had been adamant that he wanted to fight to [sic] charge with a jury trial. I was particularly cognizant of his desire for a full trial, so when this offer was presented to us the morning that we were to [sic] ready to begin voir dire, I reviewed once again what the State's witnesses would likely present to the jury, what our witnesses would likely present to the jury, and evidence regarding injuries suffered by [Petitioner]'s sister. We discussed the lack of corroboration and consistency among our own witnesses, just as we had known and discussed in the preceding year. We also discussed his daughter's lack of cooperation in trial preparation meetings - failing to attend witness meetings and failing to return our phone calls.
On the first day of testimony, [Petitioner]'s daughter Kashell Woodard showed up. As I described in my responses to [Petitioner]'s allegations in Ground One, Kashell said her aunt had actually been the aggressor. At [Petitioner]'s request, I did ask to withdraw [Petitioner]'s guilty plea. [Petitioner] requested this withdrawal with a full understanding that, if the Court granted [Petitioner]'s request, going forward with the trial would expose him to a minimum of 25 years in Texas Department of Corrections if he were to be found guilty. I expressed my concern that [Petitioner]'s daughter, Woodard, would likely be impeached by the prosecutor regarding her inconsistent version of events. I expressed concern that the jury could conclude she was not truthful and then disregard her testimony. But at no time did I tell [Petitioner] that he should plead guilty (limiting his punishment range to 2 to 20 years) or change his plea to not guilty (and have a full trial the next day, including a punishment range of 25 years to life). Co-counsel and I reviewed with him that as the Trial Court had explained, the judge would grant a continuance for one day if he wanted to go back to his arraignment plea of not guilty. He understood that with the continuance, he would have to [sic] opportunity to start with a new jury, one who had not heard him plead guilty. Throughout our relationship and again in trial, I told [Petitioner] that it was his decision to make. I told him I would not tell him what to do. It was his decision alone to make since he would be the person who had to live with it. I did not tell him at any point prior to or during the trial that he should plead guilty. I had been prepared to proceed with trial on guilt/innocence according to my client's wishes and was prepared for trial at all times.
[Petitioner] alleges that I “had not found the time to adequately investigate by stating (1) had not interviewed any of the witnesses to corroborate [Petitioner]'s version of events that would establish his innocence.” [Petitioner]'s assertion is simply not true. We interviewed every witness [Petitioner] provided to me prior to trial. Our problem focused on the fact that our witnesses did not provide evidence to provide reasonable doubt for the jury to consider. [Petitioner] further falsely claims “counsel stated she would not be able to locate any of the five witnesses requested . . .” I never made such a statement. Again, we interviewed all potential witnesses long before trial and on several occasions, but they did not provide evidence that corroborated [Petitioner]'s version of events or exonerate [Petitioner].
[Petitioner] was kept abreast of all witness meetings and potential witness testimony throughout the case. In fact, my investigators and I sought out, spoke to and met with potential defense witnesses Anthony Burks, Rochelle Barber, Millard Payne, the minister who lived next door, Kashell Woodard, and [Petitioner]'s father McKinley Harris during the pendency on [sic] the case. We met at Mr. Harris' home twice for several hours at a time. Investigators Cami Grasher and Paula Green met with witnesses and family members on July 14, 2014. Investigator Paula Green and I met again with witnesses and family members on May 22, 2015. There were also one-on-one phone conversations and meetings with some witnesses. We attempted to locate and meet with [Petitioner]'s teenage daughter, Kashell Woodard on at least four occasions. At one point, Investigators Grasher and Green watched Mr. Harris' home for nearly three hours in the hopes of locating Woodard. They were not successful. Investigator Cami Grasher spoke with Woodard on [sic] several times to set up a meeting to discuss her observations. Woodard agreed to attend the meetings, but failed to appear each time. Woodard never disclosed to Grasher the allegation that her aunt, Kimberly Barber, tried to assault [Petitioner] and injured herself as she fell from the momentum of her punch. We learned this on September 15, 2015 when she appeared for trial. We sought the help from [Petitioner] and various family members in locating Woodard's whereabouts and, in the alternative, getting a message to Kashell to have her contact us. When she showed up for trial, she provided a much more detailed versions of events, one never told to the police, the prosecutors, not the defense. As mentioned in my response to Ground One, her details of the events were not consistent with her father, her aunt or any other witness. She was the only person who alleged the victim actually attempted to strike [Petitioner]. She is the only person who said that the momentum from the victim's attempted assault on [Petitioner] caused the victim to fall and injury herself. As I presented in Count One, [Petitioner] himself never alleged the victim attempted to hit him with her hand. [Petitioner] never stated that his sister tried to assault him.
When Woodard told me the day of trial that her aunt tried to strike her father, [Petitioner] had already pled guilty to the jury. Woodard also told me that when she had met with Prosecutor Tim Rodgers, she had told Rodgers these details. I was concerned that this could be Brady v. Maryland violation by the prosecutor. Attorney Brian Wilson and I discussed various courses of action with [Petitioner]. Based on Kashell's new information, I told [Petitioner] I could (1) request the withdrawal of [Petitioner]'s guilty plea and seek a mistrial, (2) challenge the lack of disclosure by the State as a Brady violation and request a withdrawal of the guilty plea and seek a mistrial or (3) continue forward with the trial with [Petitioner]'s guilty plea in place. After discussing the situation at length with [Petitioner], [Petitioner] made the decision to withdraw his guilty plea. I then motioned to withdraw [Petitioner]'s guilty plea and requested a new trial.
[Petitioner] misstates his “facts supporting Ground Two” when he writes that I “had not found the time to adequately investigate by stating she had not interviewed any of the witnesses to corroborate [Petitioner]'s version of events that would establish his innocence.” [Petitioner] was well aware that we had interviewed all five witnesses 18 months before trial. [Petitioner] also alleges that I told him I would not be able to locate any of the five witnesses. I never told [Petitioner] that I would not be able to locate any of the five witnesses. [Petitioner] was well aware that we had located all the witnesses for trial, but their info was not helpful to our defense. At [Petitioner]'s direction, Anthony Brooks, McKinley Harris and Kashell Woodard all testified for [Petitioner] in the trial. Unfortunately, [Petitioner]'s friend, Anthony Burks could not remember anything about the incident, now two and a half years later. [Petitioner]'s elderly father, McKinley Harris told us that he recalled [Petitioner] as seated in the car while his daughter, Kimberly Barber, was standing outside of the car - totally opposite from any other witness's recollection of events. He came outside when he heard the commotion. lt appeared that he was not an eye-witness to the incident. Mr. Harris was a frail man when we first met with him in March 2014 and his cognitive abilities deteriorated over the course of the two years. No. other person recalled Mr. Harris being outside the house at the time of the incident. It was my belief that Mr. Harris' ...

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