Narramore v. Director, TDCJ-CID

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 31 Report and Recommendations, 10 Report and Recommendations. Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED and the case is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Any motion not previously ruled on is DENIED.. Signed by Judge Rodney Gilstrap on 3/27/12. (ehs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

GREGORY SCOTT NARRAMORE

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 2:09cv63

ORDER ADOPTING REPORT AND RECOMMENDATION
The above-entitled and numbered petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254 was heretofore referred to United States Magistrate Judge Roy S. Payne. The Report and
Recommendation (“R&R”) of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. Petitioner
has filed objections.
Having made a de novo review of the objections raised by Petitioner to the R&R, the Court
is of the opinion that the findings and conclusions of the Magistrate Judge are correct and Petitioner’s
objections are without merit. He first addresses his Ground Three, a claim of ineffective assistance
of counsel for failure to obtain an expert witness. He contends that the Magistrate Judge “changed
the word ‘hire’ to ‘call’ and changed the nature of the claim from ‘investigation’ to presentation.’”
Objections at 1 (PageID #309). In other words, he claims that his Ground Three addressed the failure
to simply hire an expert for his investigatory and advisory capacity. However, Ground Three in his
petition explicitly states that, “Defense counsel failed to request an expert witness,” Petition at PageID
#8 (emphasis added), and, “If an expert had testified the trial court and the jury would have heard the
true facts concerning sleep deprivation . . . .” Id. at PageID #10 (emphasis added); further, his
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Memorandum in Support (docket entry #17) also refers to counsel’s failure to “request an expert
witness,” Memorandum at 7 (PageID #93). Clearly, Petitioner contemplated that any such expert’s
value would have been in his testimony, or refuting the prosecution’s investigator. Simply put,
Petitioner’s claim was not a “failure to investigate” type claim of the type discussed in Soffar v.
Dretke, 368 F.3d 441, 476 (5th Cir. 2004), as he now contends. Moreover, the Magistrate Judge
discussed each aspect of his Ground Three in detail in the R&R. Petitioner’s instant argument that
“[t]he question here is not the witness counsel did not present but the expert he did not hire to assist
with the suppression hearing and/or the evidence needed to establish the Defendants statements were
involuntary,” Objection at 4 (pageID #312), is inconsistent with his Ground Three and his supporting
Memorandum. There was no “transformation” of Petitioner’s contention as he suggests. The
Magistrate Judge fully analyzed his “lack of expert witness” claim. Therefore, this objection is
overruled.
Next, Petitioner claims that the Magistrate Judge also mischaracterized his Ground Five for
legal insufficiency of the evidence. Objections at 5 (PageID #313). However, again, the R&R fully
discusses in detail Petitioner’s claims in both Grounds Five and Six regarding the legal and factual
sufficiency of the evidence and his contention that he could not be found guilty because it was his
brother Jeremy, and not Petitioner, who actually killed the victim. As the Texas Court of Appeals
determined, and as the R&R discusses fully, the evidence was legally sufficient under the precept of
criminal responsibility for action in concert to find him guilty. See Tex. Pen. Code §§ 7.01, 7.02;
Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). Petitioner has presented nothing to
further his claim. This objection is overruled.
Next, Petitioner contends that the R&R does not “address the factual predicate of [his Ground
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One] claim, namely, that he was in custody when he was initially detained by a swarm of police
officers.” Objections at 9 (PageID #317). In fact, the R&R does address that very point. As the
Magistrate Judge stated, “Although Petitioner argues that the presence of other officers at the scene
of the interview implies a custodial situation, the trial court’s findings, based on the testimony of both
the interviewing officer and Petitioner, makes it clear that Petitioner was free to terminate the
interview and leave if he wished, and knew as much.” R&R at 9 (citations omitted). For that reason,
“ no Miranda warning was required.” Id. at 10 (citations omitted). The Magistrate Judge considered
this issue in full, as did the Texas court. Petitioner has raised nothing to show otherwise; his objection
is overruled.
Next, Petitioner also attacks the R&R’s finding with regard to Ground Two, the second
statement he made, contending that the Magistrate Judge did not address Petitioner’s claim that sleep
deprivation and methamphetamine use rendered his statement involuntary. Objections at 11 (PageID
#319). Again, the Magistrate Judge did in fact do so. As the Magistrate Judge pointed out, despite
Petitioner’s claims, he did not allege that he was under the influence of methamphetamine at the time
he made his second statement; and, he made a number of corrections on reconsideration of his own
written document. See R&R at 11. As he stated, “These facts support the trial court’s finding of
voluntariness and lack of threat or coercion.” Id. (citations omitted). Further, Petitioner admits that
the trial judge charged the jury with an instruction taking his claims into account. He has presented
nothing to rebut the presumption of correctness of the trial court’s findings or the conclusions of the
Magistrate Judge. Therefore, his objection is overruled.
Petitioner next attacks the finding in the R&R with respect to his Ground Four and the conduct
of voir dire at his trial. He acknowledges that the Magistrate Judge found no unfairness in the
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questioning of the venire. In fact, the Magistrate Judge went to great length to discuss the methods
the trial judge used to ensure that no panel members were tainted by the publicity of Petitioner’s case,
her decision to excuse several venire members who showed any sign of partiality, and the additional
efforts by counsel in their questioning. R&R at 12-15. In his objections, Petitioner simply asserts that
“animosity was rampant throughout the community and directed toward Petitioner,” Objections at 13
(PageID #321). His argument is conclusory at the very best. His objection is overruled.
Petitioner’s final two objections, regarding his Ground Seven on collateral estoppel, and his
Grounds Eight, Nine and Ten on the effectiveness of his appellate counsel, contain little or no
argument and are also conclusory at best. Therefore, the objections are overruled.
. Having completed a de novo review, the Court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct, and adopts same as the findings and conclusions of
the Court. It is therefore
ORDERED that Petitioner’s objections are OVERRULED and his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DENIED and the case is DISMISSED WITH PREJUDICE.
A certificate of appealability is DENIED. Any motion not previously ruled on is DENIED.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 27th day of March, 2012.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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