Crumpton v. Director - Texas Department of Criminal Justice, Correctional Institutions Division

Filing 37

MEMORANDUM OPINION regarding Petitioner's petition. A certificate of appealability shall not issue in this matter. Signed by Judge Thad Heartfield on 9/17/2014. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
TRAVERS EARL CRUMPTON

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 1:11cv123

MEMORANDUM OPINION
Petitioner Travers Earl Crumpton, an inmate confined within
the Texas Department of Criminal Justice, Correctional Institutions
Division, proceeding pro se, filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
Factual Background
In 2009, following a jury trial, petitioner was convicted of
evading arrest or detention with a vehicle in the 253rd District
Court of Liberty County, Texas.
of

true

to

convictions,
imprisonment.

the
the

allegation
jury

that

he

sentenced

had

eight

petitioner

prior
to

15

felony
years

The conviction was affirmed by the Texas Court of

Appeals for the Ninth District.
00426-CR.

After petitioner entered a plea

Crumpton v. State, No. 09-08-

Petitioner did not file a petition for discretionary

review.
On September 23, 2010, petitioner filed a state application
for writ of habeas corpus.

The Texas Court of Criminal Appeals

denied the application without written order on the findings of the
trial court without a hearing on November 2, 2011.

Grounds for Review
Petitioner asserts he received ineffective assistance of
counsel because counsel: (1) failed to investigate and prepare for
trial; (2) failed to reasonably and competently advocate his
defense

at

trial

and

(3)

failed

to

seek

a

new

trial

when

exculpatory evidence was discovered.
Evidence at Trial
In its opinion, the intermediate appellate court described the
evidence introduced at trial as follows:
Several officers from the Liberty County Sheriff’s Office
went to a hotel during daylight hours to serve an arrest
warrant on Crumpton. One plainclothes officer sat in an
unmarked observation vehicle. The other deputies were in
marked squad cars and were wearing jackets with the word
“Sheriff” marked conspicuously down their sleeves. Sergeant Knox was in a marked patrol car on the street west
of the hotel. Two Liberty police officers were in a marked
squad car and wore either a uniform or a jacket with the
word “[p]olice” emblazoned on it. The officers waited
until Crumpton arrived in a vehicle and drove underneath
the hotel carport. Captain Fairchild drove up behind Crumpton and activated the red and blue lights on his patrol
car. The Liberty police officers got out of their vehicle
and yelled “[p]olice” as they approached Crumpton with their
guns drawn. Fairchild exited his vehicle and was yelling
“[s]top” and “[p]olice.” As they approached, Crumpton
sped off in his vehicle. Crumpton passed two feet away
from Fairchild, and Crumpton looked at Fairchild as Crumpton drove by. Crumpton drove eastbound down Highway 90
through Dayton with Fairchild in pursuit in one vehicle
and Knox in pursuit in another vehicle. Both patrol
vehicles had their lights and sirens activated. Knox was
immediately behind Crumpton as they drove down the highway. After sideswiping some vehicles and running through
the red lights, Crumpton drove at a high rate of speed
through a turn, ran off the road, and wrecked the vehicle.
Knox was one of the officers who maintained pursuit until
Crumpton was apprehended. Knox was trying to arrest or
detain Crumpton.
Knox testified he pursued Crumpton at speeds as high as
ninety miles per hour. His emergency lights and siren were
2

on during the pursuit. Knox testified that he was trying
to lawfully arrest or detain Crumpton and that Crumpton
fled from him.
Crumpton testified he thought he was being pursued by members of the Banditos motorcycle gang and that he thought
that [the gang] was trying to kidnap or kill him in retaliation for burning a truck. He claimed the officers did
not have their emergency lights on. He testified that
he looked back and saw police officers and lights twenty
yards before he wrecked the vehicle and ran from the police.
Crumpton admitted he ran because he was afraid of being
arrested. Crumpton knew he had a warrant out on him at
the time.
Standard of Review
Consideration of a habeas petition filed in federal court is
limited to the highly deferential review standard afford to state
court adjudications under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). 28 U.S.C. § 2254. See Hearn v. Thaler, 669
F.3d 265, 271 (5th Cir. 2012) (“AEDPA thus imposes a highly
deferential

standard

for

evaluating

state-court

rulings,

and

demands that state-court decisions be given the benefit of the
doubt.”

(internal quotation marks and citation omitted)).

Under

AEDPA, a federal court may not grant habeas relief on a claim that
was adjudicated on the merits by a state court unless the state
court decision: (1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the

Supreme

Court,”

or

(2)

“was

based

on

an

unreasonable

determination of the facts in light of the evidence presented in
the State court proceeding.”

28 U.S.C. § 2254(d)(1).

“Clearly

established Federal law” refers to holdings of the Supreme Court at
the time of the state court’s decision.

3

See Williams v. Taylor,

529 U.S. 362, 412 (2000). Factual findings by the state court “are
presumed to be correct, and a petitioner has the burden of
rebutting this presumption with clear and convincing evidence.”
Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005).
A state court decision involves an unreasonable application of
federal law if it “correctly identifies the governing legal rules
but applies it unreasonably to the facts of a particular prisoner’s
case.”

Fields v. Thaler, 588 F.3d 270, 273 (5th Cir. 2009)

(quoting Williams, 529 U.S. at 407-08).

In evaluating whether a

state

was

court’s

specificity

application

of

the

rule

of

must

a
be

Alvarado, 541 U.S. 652, 664 (2004).

rule

unreasonable,

considered.

Yarborough

the
v.

“The more general the rule,

the more leeway courts have in reaching outcomes in case-by-case
determinations.”

Id.

An unreasonable application of law differs

from an incorrect application; thus, a federal habeas court may
correct what it finds to be an incorrect application of law only if
this application is also objectively unreasonable.
529 U.S. at 409-11.

See Williams,

“A state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s
decision.”

Harrington v. Richter, 131 S.Ct. 770, 786 (2011)

(citation omitted). “[E]ven a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.” Id. The
Supreme court has noted that this standard is difficult to meet ...
because it was meant to be.”

Id.

4

Analysis
Legal Standard for Claim of Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is reviewed under
the standards announced by the Supreme Court in Strickland v.
Washington,

466

U.S.

668

(1984).

"First,

a

defendant

must

demonstrate that 'counsel's representation fell below an objective
standard of reasonableness,' with reasonableness being judged under
professional

norms

prevailing

at

the

assistance."

Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992)

(quoting Strickland, 466 U.S. at 688).

time

counsel

rendered

Second, if counsel was

ineffective, "[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. A claim of ineffective
assistance

of

counsel

will

only

merit

habeas

relief

when

petitioner satisfies both prongs of the Strickland test.

a

See

Strickland, 466 U.S. at 687-97.
Application
A.

Failure to Investigate and Prepare for Trial

Petitioner states that on the date in question, he received a
phone call from a woman he knew only as Ashley.

She asked him to

meet her at a hotel.
When petitioner arrived at the hotel, he pulled up to Ashley,
who was standing in a covered drive area. She opened the passenger
side door of petitioner’s truck and told him she had to get her
5

bag. She then ran into the hotel lobby. Petitioner then looked in
his rear view mirror and saw two individuals in plain clothing
advancing on foot in a “sneaking like posture” with handguns in
hand.

Petitioner then saw a white pickup truck pull out about 30

yard in front of his vehicle, blocking the exit from the covered
drive area.
Petitioner believed he was being “set up” by Ashley so that
individuals he had had an altercation with two weeks previously
could harm him. Petitioner accelerated his vehicle over a curb and
headed east on Highway 90. He states he only looked back once and
saw the white pickup truck and what appeared to be a Lincoln Town
Car chasing him.
Petitioner subsequently came upon traffic stopped for a red
light.

Petitioner, in fear of the people who were chasing him,

went off the side of the paved street and sideswiped a telephone
pole.

This pushed his vehicle back into the street, where he

sideswiped the passenger side of two vehicles stopped at the light.
After making a right turn at the traffic light, petitioner
looked over his shoulder and discovered police were involved in the
chase.

After seeing the flashing red lights of a police vehicle,

petitioner slammed on his brakes, causing his truck to slide into
a ditch.
Petitioner states his defense at trial was that he was under
the mistaken belief that he was being pursued by members of a motor
cycle gang rather than the police.

He asserts his attorney failed

to adequately investigate his case and prepare for trial. He states
6

he told counsel Ashley, who was being used by the police to lure
petitioner to the hotel, could provide testimony in support of his
contention that he was being “set up.”

He states counsel told him

he was unable to locate Ashley and made no attempt to subpoena her.
Nor did counsel attempt to have the court direct the prosecution to
produce Ashley at trial.
In connection with petitioner’s state application for writ of
habeas

corpus,

counsel

supplied

representation of petitioner.
report

on

the

incident

an

affidavit

concerning

his

Counsel stated that the police

contained

no

identifying

information

concerning Ashley and that petitioner supplied no information as to
where she could be found.

He also stated he unsuccessfully

attempted to locate Ashley prior to trial.
In connection with petitioner’s state application for writ of
habeas corpus, the trial court made the following Findings of Fact
and Conclusions of Law regarding this ground for review:
Trial counsel adequately investigated and prepared for
trial.
Trial counsel attempted, unsuccessfully, to find idenitifying and locating information relating to the potential
witness Applicant refers to as “Ashley” as reflected in
trial counsel’s affidavit. Furthermore, trial counsel
informed Applicant long before trial on the merits that
“Ashley” could not be located.
Trial counsel’s pretrial investigation and preparation
did not uncover any information that would have assisted
trial counsel in locating “Ashley.” Before trial, trial
counsel was allowed to view the offense report, which did
not contain any identifying or locating information relating to Ashley.
Trial counsel provided effective assistance of counsel
pursuant to Strickland v. Washington, 466 U.S. 668, 687
7

(1984). Applicant has not proven by a preponderance of
the evidence that his trial counsel’s representation was
deficient in that it fell below the standard of prevailing
professional norms. Applicant has not proven by a preponderance of the evidence that there is a reasonable probability that, but for trial counsel’s deficiency, the
outcome fo the trial would have been different.
Based on the record before it, it cannot be concluded that the
state court’s factual findings were an unreasonable determination
of the facts.

Nor can it be concluded that the state court’s

conclusion of law was contrary to or involved an unreasonable
application of clearly established federal law.
counsel

was

unsuccessful

in

his

attempts

to

Even though

locate

Ashley,

counsel’s efforts on this point did not fall below an objective
standard of reasonableness.1

Further, there is no evidence in the

record demonstrating the police or the prosecution would have been
able to locate Ashley if ordered to do so by the trial court.
B.

Failure to Reasonably and Competently Advocate

In addition, petitioner asserts counsel failed to properly
cross-examine witnesses called by the prosecution regarding Ashley
or introduce evidence demonstrating Ashley was being used by the
police.

He states this failure permitted the jury to draw the

inference that Ashley did not exist.

1

In addition, complaints regarding uncalled witnesses are not favored
in federal habeas review. Bray v. Quarterman, 265 F. App’x 296 (5th Cir.
2008). In order to prevail on such a claim, a petitioner must name the
witness, demonstrate that the witness was available to testify and would have
done so, set out the content of the witness’s proposed testimony, and show
that the testimony would have been favorable to a particular defense. Id.
(citing Alexander v. McCotter, 775 F.2d 595 (5th Cir. 1985)). Petitioner has
not provided Ashley’s full name or demonstrated she would have been available
to testify at trial. In addition, petitioner does not describe what testimony
Ashley would have provided to bolster his defense that he believed he was
being chased by members of a motorcycle gang.

8

The trial court made the following Findings of Fact and
Conclusions of Law regarding this claim:
Trial counsel’s adequate pretrial investigation and preparation did not provide him with a means to identify or
locate “Ashley.”
Applicant did not provide trial counsel with a way to
identify or locate “Ashley.”
Without a means to identify and locate “Ashley,” trial
counsel could not learn, ahead of time, the substance of
“Ashley’s” expected testimony before calling her as a
witness for the defense.
Applicant did not provide trial counsel with any means of
learning the substance of “Ashley’s” expected testimony.
Applicant has failed to demonstrate that the trial jury inferred that the material witness, “Ashley,” did not exist.
The record contains no indication or showing, through juror
affidavit or otherwise, that the trial jury inferred that
a material witness for the defense did not exist.
Trial counsel provided effective assistance of counsel pursuant to the standards outlined in Strickland v. Washington,
466 U.S. 668, 687 (1984). Applicant has not proven by a
preponderance of the evidence that his trial counsel’s
representation was deficient in that it fell below the
standard of prevailing professional norms. Applicant has
not proven by a preponderance of the evidence that there
is a reasonable probability that, but for trial counsel’s
deficiency, the outcome of the trial would have been
different.
As stated above, petitioner’s counsel did make unsuccessful
attempts to locate Ashley.

Nor is it clear what other evidence

counsel could have introduced to demonstrate she was being used by
the police or was at the scene of the incident.

While he could

have questioned prosecution witnesses about her, counsel would have
understandably been reluctant to do so without knowing what they
would say.

Finally, it appears the jury found petitioner’s

9

testimony that he did not realize it was the police that were
chasing him to be less than credible.

It is not clear that

Ashley’s testimony would have helped petitioner convince the jury
he was being chased by a motorcycle gang.
testimony

from

petitioner’s

Ashley

theory

would

of

the

have
case,

Even if it is assumed

provided

some

there

not

is

support
a

for

reasonable

probability the result of the proceeding would have been different
if

the

jury

had

been

presented

with

evidence,

other

than

petitioner’s testimony, demonstrating Ashley was present at the
scene

of

the

incident

and

was

being

used

by

the

police.

Accordingly, petitioner did not suffer prejudice because such
evidence was not presented.
Based on the foregoing, the state court’s findings of fact
with respect to this ground for review was not an unreasonable
determination of the facts in light of the evidence before it.

In

addition, the court’s legal conclusion on this point was not
contrary to and did not involve an unreasonable application of
clearly established federal law.
C.

Failure to Seek New Trial

Finally,

petitioner

asserts

failing to seek a new trial.

counsel

was

ineffective

for

He states that during the punishment

phase of the proceeding, a photograph was introduced which showed
on-board camera equipment mounted on the dash of one of the
vehicles involved in the chase.

He states that during a bench

conference, it was revealed that all new patrol units had camera
equipment and that such equipment would have been operational on
10

the date in question.

He states counsel should have sought a new

trial based on the prosecution’s failure to disclose exculpatory
evidence in the form of a video made of the chase.

He states that

while counsel told him he intended to file such a motion, a motion
was not filed.
In the affidavit he supplied in connection with petitioner’s
state application for writ of habeas corpus, counsel stated he was
unable to determine what patrol unit was involved in the incident.
In addition, he stated Elaine Taylor checked through all of the
DVDs at the Liberty Police Department, but could not locate a
recording that showed the chase. Ms. Taylor provided an affidavit
stating she had no knowledge of any recording of the incident.
Captain Steven Greene of the Liberty County Sheriff’s Department
also supplied an affidavit. He stated he had received a subpoena
duces tecum directing him to provide any documentation regarding or
an actual copy of any recording of the chase.

He stated he was

unable to locate any recording and stated he found a notation in
department records that there was no recording of the chase.
With respect to this ground for review, the trial court made
the following findings of fact and conclusions of law:
No video recording of Applicant’s encounter with and subsequent flight from law enforcement officers exists.
The testimony of the State’s witnesses at trial reflects
that no in-car video camera recording of Applicant’s initial
encounter and subsequent flight from law enforcement officers exists.
Affidavits filed in response to Applicant’s post-trial
subpoenas provide no indication that an in-care video
camera recording of Applicant’s encounter with and flight
11

from law enforcement officers exists.
Even if trial counsel would have filed a motion for new
trial, the affidavits [previously referenced] give no indication that a video recording exists. As such, there
would have been no newly discovered evidence as a ground
for granting a new trial.
Applicant provides no proof that the existence of a video
would have changed the outcome of the trial.
Trial counsel provided effective assistance of counsel pursuant to the standards outlined in Strickland v. Washington,
466 U.S. 668, 687 (1984). Applicant has not proven by preponderance of the evidence that his trial counsel’s represenation was deficient in that it fell below the standard of prevailing professional norms. Applicant has not
proven by preponderance of the evidence that there is a
reasonable probability that, but for trial counsel’s deficiency, the outcome of the trial would have been different.
There is no evidence in the record demonstrating that a
recording was made of the pursuit of petitioner by the police.
While counsel attempted to locate a recording, he was unsuccessful.
However, the fact that he was unsuccessful does not mean that his
efforts to locate the recording fell below an objective standard of
reasonableness.
located,

any

In addition, as no copy of the recording can be

assertion

that

the

recording

would

have

been

exculpatory is speculative.
Without a copy of the recording, there is not a reasonable
probability that a motion for new trial would have been granted.
Petitioner therefore suffered no prejudice as a result of such a
motion not being filed.

The state court’s determination of the

facts with respect to this ground for review–specifically, that no
recording exists--was not an unreasonable determination of the
facts before it.

Further, the court’s legal conclusion on this

12

point was not contrary to and did not involve an unreasonable
application of clearly established federal law.
Conclusion
For the reasons set forth above, this petition for writ of
habeas corpus is without merit and will be denied. An appropriate
final judgment shall be entered.
In addition, the court is of the opinion petitioner is not
entitled to a certificate of appealability.

An appeal from a

judgment denying federal habeas relief may not proceed unless a
certificate of appealability is issued. See 28 U.S.C. § 2253. The
standard for a certificate of appealability requires the petitioner
to

make

a

substantial

showing

of

the

denial

of

a

federal

constitutional right. See Slack v. McDaniel, 529 U.S. 473 (2000);
Elizalde v. Dretke, 362 F.3d 323 (5th Cir. 2004).

To make a

substantial showing, the petitioner need not establish that he
would prevail on the merits.

Rather, he must demonstrate that the

issues raised are subject to debate among jurists of reason, that
a court could resolve the issues in a different manner, or that the
questions presented are worthy of encouragement to proceed further.
See Slack, 529 U.S. at 483-84.

Any doubts regarding whether to

grant a certificate of appealability should be resolved in favor of
the petitioner.

See Miller v. Johnson, 200 F.3d 272 (5th Cir.

2000).
In this case, petitioner has not shown that any of the issues
he raised are subject to debate among jurists of reason.

The

factual and legal issues asserted by petitioner are not novel and
13

have been consistently resolved adversely to his position.

In

addition, the issues raised are not worthy of encouragement to
proceed further. As a result, a certificate of appealability shall
not issue in this matter.
SIGNED this the 17 day of September, 2014.

____________________________
Thad Heartfield
United States District Judge

14