Robert Davis v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION FILED. [11-20606 Affirmed ] Judge: TMR , Judge: ECP , Judge: JWE Mandate pull date is 02/27/2013 [11-20606]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
February 6, 2013

No. 11-20606

Lyle W. Cayce
Clerk

ROBERT GLEN DAVIS,
Petitioner–Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent–Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-3788

Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
Petitioner–Appellant Robert Glen Davis, Texas prisoner # 1395990, was
convicted of aggravated assault and sentenced to fifty years’ imprisonment.
After exhausting his state remedies, he filed a pro se petition for federal habeas
relief under 28 U.S.C. § 2254. This Court granted a certificate of appealability
on the issue of the effectiveness of Davis’s trial counsel; we now AFFIRM the
denial of his petition.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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I. Background
On August 26, 2005, a grand jury returned a felony indictment against
Davis, charging him with aggravated assault. Specifically, Davis was charged
with intentionally injuring his wife, Gwendolyn Thompson, with a deadly
weapon. The State enhanced the indictment with allegations that Davis had two
prior felony convictions for robbery.
A venirepanel of sixty-two people was convened for voir dire. Davis’s trial
counsel explained to the veniremembers:
People have backgrounds and sometimes in a case there
are people that are law enforcement that testify and
people that are not law enforcement that testify. And
one of those things that people can have—this is
another simple bias, it’s not negative, it’s just the way
it is. Okay—is that you would believe a police officer
over a non-police officer . . . Well, our law says that you
can’t give a police officer any more credibility than any
other witness just because they’re a police officer.
Okay. And I need—that’s the other question that I’m
asking you. . . . Are you going to be able to consider all
of the witnesses equal and not consider law enforcement
testimony just because it’s law enforcement testimony
superior over a civilian’s?
(Emphasis added.) Counsel asked this and two other questions as he proceeded
down the row of assembled veniremembers. Any time a veniremember answered
“No,” he would ask for clarification. After receiving a “No” from Juror Clark (#7),
counsel asked which question he was referring to, and Clark answered, “I would
tend to weigh a police officer’s testimony a little higher than I would someone
that wasn’t.” Juror Penn (#27) also answered “No,” and then clarified, “Just on
the credibility of a—not, I guess there’s the discussion that bothers me about
bringing someone in off the street that could have credibility like an officer or
somebody.” When counsel came to Juror Vela (#39), she stated, “No, I would
believe a police officer first.” Veniremember Jackson (#59) stated he would “tend
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to have—give the police officer more credence than just an ordinary person.”
Counsel did not ask any further questions of these veniremembers. Clark and
Penn were eventually empaneled on Davis’s jury. Vela was originally empaneled
but was removed from the jury before it rendered a verdict. Jackson was never
empaneled.
At trial, the State called several witnesses, including Thompson and three
law enforcement officers. Thompson testified that Davis visited her apartment
late on the night of July 16, 2005. She stated that after Davis took a chef’s knife
from the kitchen, he began attacking her, saying he was going to kill her because
she would not take him back or have sex with him. Davis stabbed Thompson
repeatedly in the chest, stomach, and left arm before fleeing the apartment. The
paramedics dispatched to Thompson’s apartment initially did not believe she
would survive because of the amount of blood she had lost. Thompson testified
that the long-term effects of her injuries meant that she could no longer work as
a home health care provider and had trouble digesting food.
The law enforcement officers’ testimony consisted largely of descriptions
of the crime scene and statements made by the victim at the time of the incident.
Officer Robert Gutierrez, the crime scene investigator, identified and described
a number of photographs he had taken when he arrived on the scene, including
images showing blood on Thompson’s door, carpet, and couch. The responding
patrol officer, Officer James Crawford, stated that he remained at the crime
scene for an hour and had observed blood everywhere. He said that while she
was in the ambulance, Thompson had told him that her boyfriend, Robert Davis,
had come into the apartment and stabbed her with a knife. Officer James
Taylor, a robbery investigator, testified that after the incident he met with
Thompson, who gave him a kitchen knife to collect as evidence.
Davis testified in his own defense. On direct examination, he claimed that
Thompson’s wounds were self-inflicted, that she was a drug addict, and that she
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had attacked him with the knife first. On cross-examination, however, he
admitted that he had stabbed Thompson, though he testified that it was in selfdefense. Davis acknowledged that he had a lengthy criminal record, but denied
that he had violent tendencies.
On September 21, 2006, the jury returned a guilty verdict. Davis admitted
the State’s enhancement allegations were “true.” The judge then sentenced him
to fifty years of imprisonment.

The state appeals court affirmed Davis’s

conviction, and the Texas Court of Criminal Appeals refused his petition for
discretionary review.

See Davis v. State, 259 S.W.3d 778, 780 (Tex.

App.—Houston[1st Dist.] 2007, pet. ref’d). Davis subsequently sought state
habeas relief in the trial court that presided over his trial. That court submitted
written findings recommending that relief be denied. See Ex parte Davis, No.
1034652-A (208th Dist. Ct., Harris County, Tex. May 17, 2010). Davis appealed
to the Texas Court of Criminal Appeals, which adopted the trial court’s findings
and denied relief without written order. See Ex parte Davis, No. WR-73,665-02
(Tex. Crim. App. July 14, 2010).
Davis then filed this 28 U.S.C. § 2254 petition in the United States District
Court for the Southern District of Texas. The petition argued that (1) there was
insufficient evidence to support Davis’s conviction, (2) the trial court erred in
denying his Theus motion to prohibit the State from impeaching his testimony
using his prior convictions, and (3) his trial counsel was ineffective. The district
court determined that his sufficiency of the evidence claim was procedurally
barred and his two other claims lacked merit. It also denied sua sponte a
certificate of appealability (COA). Davis timely appealed, and a judge of this
Court granted a COA on the sole issue of whether “his trial counsel was
ineffective in that he failed to raise for-cause or peremptory challenges against
jurors who indicated a predisposition to credit police officer testimony over other
witness testimony.”
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II. Discussion
In reviewing a denial of the writ of habeas corpus, this Court reviews the
district court’s findings of fact for clear error and its conclusions of law de novo.
Guy v. Cockrell, 343 F.3d 348, 351 (5th Cir. 2003).
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) governs
a federal habeas court’s review of a state court’s adjudication of the merits of a
state prisoner’s claims. 28 U.S.C. § 2254(d). “AEDPA . . . imposes a highly
deferential standard for evaluating state-court rulings and demands that statecourt decisions be given the benefit of the doubt.” Renico v. Lett, 130 S. Ct. 1855,
1862 (2010) (citations and internal quotation marks omitted). With respect to
claims of ineffective assistance of counsel, a federal court may not grant habeas
relief unless the state court’s denial “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Valdez
v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001) (“We review questions of law and
mixed questions of law and fact under the ‘contrary to’ and ‘unreasonable
application’ prong of 28 U.S.C. § 2254(d).”); Strickland v. Washington, 466 U.S.
668, 698 (1984) (questions about the effectiveness of counsel are mixed questions
of law and fact).
When, as here, the state court decision applied the correct legal rule to the
facts of the case, the decision is reviewed under the “unreasonable application”
clause. See (Terry) Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court
unreasonably applies Supreme Court precedent if it “identifies the correct
governing legal rule from [Supreme Court] cases but unreasonably applies it to
the facts,” or if it “unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.” (Terry) Williams,
529 U.S. at 407. To satisfy the “unreasonable application” prong of § 2254(d)(1),
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a petitioner must show that “there was no reasonable basis” for the state court’s
decision. Harrington v. Richter, 131 S. Ct. 770, 784 (2011); see also Cullen v.
Pinholster, 131 S. Ct. 1388, 1402 (2011) (in reviewing a state court’s decision on
the merits, “a habeas court must determine what arguments or theories . . .
could have supporte[d] the state court’s decision; and then it must ask whether
it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of this Court”).
The relevant “federal law as determined by the Supreme Court” in this
case is the standard for ineffective assistance of counsel claims set out in
Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim of
ineffective assistance of counsel under Strickland, a petitioner must show (1)
that counsel’s performance was deficient, and (2) that this prejudiced the
petitioner’s defense. Strickland, 466 U.S. at 687; see Virgil v. Dretke, 446 F.3d
598, 608 (5th Cir. 2006).
Thus, Davis must meet three separate burdens: he must show that his
counsel’s performance was deficient, he must establish that counsel’s deficient
performance prejudiced his defense, and, finally, he must demonstrate there was
“no reasonable basis” for the state habeas court’s decision to the contrary. See
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). We conclude that Davis
has not met the first, much less all three, of these burdens.
To satisfy Strickland’s “deficient performance” prong, the petitioner “must
demonstrate that counsel’s representation ‘fell below an objective standard of
reasonableness.’”

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting

Strickland, 446 U.S. at 688). A reviewing court must give great deference to
counsel’s performance, applying a strong presumption “that [he] rendered
adequate assistance and that the challenged conduct was the product of a
reasoned trial strategy.” Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.
1992).
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Davis’s ineffective assistance of counsel claim centers on the performance
of his attorney during voir dire. He argues that his counsel failed to challenge
for cause the jurors who indicated they would credit the testimony of a police
officer over the testimony of other witnesses.1 This failure, Davis claims,
resulted in his case being decided by biased jurors,2 depriving him of his Sixth
Amendment right to an impartial jury.
Davis suggests that our decision in Virgil v. Dretke, 446 F.3d 598, 608 (5th
Cir. 2006), governs this case and entitles him to relief. Davis is correct that
Virgil controls, but he is mistaken in claiming that it dictates an outcome in his
1

Under AEDPA, petitioners may not appeal the denial of habeas relief without securing
a COA. 28 U.S.C. § 2253(c)(1). A COA is only warranted if the petitioner makes “a substantial
showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make such a showing,
petitioner must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (quotation marks omitted).
In his brief, Davis alleges bias on the part of multiple jurors and veniremembers other
than Clark, Penn, Vela, and Jackson. But the COA in this case was granted only to review
whether “trial counsel was ineffective in that he failed to raise for-cause or peremptory
challenges against jurors who indicated a predisposition to credit police officer testimony over
other witness testimony.” Clark, Penn, Vela, and Jackson were the only unchallenged
veniremembers who exhibited this disposition. Davis did not move to have the scope of the
COA broadened, but because he brings this action pro se, we assume for the sake of argument
that his initial brief in this appeal served as such a motion. However, because no reasonable
jurist could debate that the district court was correct in its disposition of the claims regarding
these other veniremembers, we decline to expand the scope of the COA to include arguments
about more veniremembmers than those who indicated they would give more weight to police
testimony. Claims the district court was not able to adjudicate because they were not raised
are waived on appeal. See United States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990) (“If the
defendant in habeas proceedings did not raise his claims before the district court,we do not
consider them on appeal.”).

2

The State asserts that Davis did not sufficiently raise challenges in the district court
or state court to his counsel’s questioning of certain jurors that he now argues were biased.
To the extent Davis now objects to any jurors for reasons other than their stated faith in the
testimony of law enforcement officials, his claims fall outside the scope of the COA granted by
this Court. See supra note 1. To the extent the arguments the State objects to fall within the
scope of the COA, we decline to address the State’s waiver arguments because even if the
claims were not waived, Davis is still not entitled to relief. See infra Discussion of prejudice.

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favor. In that case, a habeas petitioner brought an ineffective assistance of
counsel claim, arguing that his attorney failed to make a for-cause or peremptory
challenge to five allegedly biased jurors. Virgil, 446 F.3d at 601. Three of the
jurors at issue—Saddler, Faulconer, and Jarboe—had answered “No” when
counsel asked, “[W]ould you give [a defendant with a prior conviction] the same
benefit of credibility as you would anybody else?” Id. at 602. Of the other two
jurors at issue, Sumlin and Sims, one had indicated that he would be “prejudiced
against the defendant” because of his opinions about repeat offenders, and when
asked “So therefore you could not serve as an impartial juror in this case?” he
answered, “I would say no.” Id. at 603. The other indicated he would “be
prejudiced or have an unfavorable opinion against a defendant charged with [a
crime like Virgil’s],” and answered “Yeah, I believe so” when asked, “Would this
cause you to be a juror who could not be fair and impartial in this case?” Id. at
603–04.
Regarding these last two jurors, the Court stated: “Virgil’s defense was
prejudiced under Strickland by the sitting of Sumlin and Sims, as each
unequivocally expressed that they could not sit as fair and impartial jurors, and
the state court’s decision to the contrary cannot stand,” meaning that Virgil’s
habeas petition would be granted. Id. at 613. However, with respect to Saddler,
Faulconer, and Jarboe, the Court found that Virgil failed to meet even
Strickland’s first prong, stating that counsel’s performance in response to their
testimony was “not deficient.” Id. at 608. In reaching that conclusion, the Court
explained:
The reality is that the role of the juror in our
government would be weakened if our system expected
each juror to lack any real-world sense of who is or is
not testifying truthfully, and we are not convinced that
this testimony alone would give rise to a valid for-cause
challenge under Texas law. Such a limited and natural
response is insufficient to raise any obligation on the
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part of counsel to respond with a peremptory or forcause challenge.
Id. at 609 (footnote omitted).
Davis’s case bears more similarity to Virgil’s claims regarding Saddler,
Faulconer, and Jarboe than to the claims regarding Sims and Sumlin. Unlike
Sims and Sumlin, none of the four jurors in question here ever “unequivocally
expressed that they could not sit as fair and impartial jurors.”

Like the

testimony of Saddler, Faulconer, and Jarboe, the statements Davis objects to
merely reveal an inclination to give greater weight to certain testimony; they
provide no indication that the jurors harbored any prejudice against the
defendant or in favor of the State or the victim, or would otherwise be prevented
from impartially determining Davis’s guilt or innocence. See Chavez v. Cockrell,
310 F.3d 805, 811 (5th Cir. 2002) (“In evaluating claims of juror partiality, we
must consider whether the jurors in a given case had ‘such fixed opinions that
they could not judge impartially the guilt of the defendant.’” (quoting Patton v.
Yount, 467 U.S. 1025, 1035 (1984)).

As with testimony indicating an

unwillingness to credit the statements of a defendant with prior convictions,
testimony indicating a predisposition to give undue weight to police officer
statements would not likely give rise to a challenge for cause under Texas law.
See Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999) (holding that a
venireman was not challengeable for cause under Texas Code of Criminal
Procedure Article 35.16(a)(9) after he stated that he would tend to believe
policemen and doctors slightly more than others); see also TEX. CODE CRIM.
PROC. art 35.16(a) (West 2004). In light of this, and our duty to give substantial
deference to counsel’s decisions, we cannot conclude that the choice to forgo a forcause challenge to strike these four jurors constitutes deficient performance. Cf.

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Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (“Failure to raise meritless
objections is not ineffective lawyering; it is the very opposite.”).3
Though we need not reach the issue, we note in passing that Davis fails
to meet Strickland’s second requirement as well. In order to demonstrate
prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. First, because Vela and
Jackson did not sit in judgment of Davis, counsel’s failure to challenge their
inclusion was irrelevant to the outcome of his trial. Whether Clark and Penn,
who did serve as jurors, put more faith in the testimony of Officers Gutierrez,
Crawford, and Taylor than that of other witnesses was largely irrelevant, since
the assessment of Davis’s guilt did not turn on the credibility of the law
enforcement officials. Their testimony focused their observations at the crime
scene and statements Thompson had made to them, which were supported by
photographs and Thompson’s own testimony. Davis ultimately admitted to
stabbing Thompson, so the only remaining issue for the jury was whether he
acted in self-defense, a question about which the officers never testified. The
outcome of Davis’s trial thus was not affected by the alleged errors of his
attorney.

3

Davis also cites an unpublished case of this Circuit, Biagas v. Valentine, 265 F. App’x
166 (5th Cir. 2008) (per curiam) (unpublished), to support his claims. Putting aside that this
Court is not bound by Biagas’s conclusions, the case is factually distinguishable for a number
of reasons. In that case, as here, the habeas petitioner argued that his counsel was ineffective
for having failed to challenge jurors who stated they would give greater weight to police
testimony. Id. at 167–70. The Biagas Court affirmed the district court’s grant of his petition.
Id. at 173. However, there, the juror at issue was a Harris County Sheriff’s Deputy. Id. at
167. Harris County was the victim of the fraud scheme allegedly executed by Biagas, and the
witnesses against him were Harris County officials. Id. Furthermore, the juror demonstrated
more than a mere willingness to credit some witnesses’ testimony over others’; he also
explicitly admitted, “I’m going to be partial.” Id. None of these additional circumstances is
present in Davis’s case.

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Because we find that Davis cannot meet the two requirements outlined in
Strickland, we cannot conclude that the state habeas court was unreasonable in
its application of Supreme Court precedent in reaching the same result.4
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of Davis’s
habeas petition.

4

The state habeas court actually denied Davis’s petition on the grounds that Davis had
failed to state with specificity which jurors he believed counsel should have struck, on what
grounds they should have been struck, or how counsel’s failure to do so caused him harm.
However, for purposes of reviewing the state court’s adjudication of the merits under AEDPA,
the path the state court takes to reach its decision is immaterial. See Catalan v. Cockrell, 315
F.3d 491, 493 (5th Cir. 2002) (“[W]e review only the state court’s decision, not its reasoning
or written opinion . . . .”(emphasis added)).

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