Arnett v. Thaler, Director TDCJ-CID

Filing 21

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 18 Report and Recommendation. ORDERED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is DENIED and the case is DIS MISSED with prejudice. In addition, as the Magistrate Judge concluded, a certificate of appealability should not issue and is hereby DENIED. All other motions not previously ruled on are DENIED. Signed by Judge Richard A. Schell on 3/31/2016. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ROGER DALE ARNETT

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:13cv174

ORDER OF DISMISSAL
Petitioner Roger Dale Arnett, an inmate confined at the Allred Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The cause of action was referred to United States Magistrate Judge
Don D. Bush, who issued a Report and Recommendation concluding that the petition should be
denied.
Petitioner is challenging his Grayson County conviction for indecency with a child by
exposure. Magistrate Judge Bush determined Petitioner’s claims that both trial and appellate
counsel provided ineffective assistance are without merit. Further, with respect to his remaining
claim that his conviction is based on false testimony, the Magistrate Judge found Petitioner’s claim
is without merit. The Magistrate Judge found Petitioner failed to satisfy his burden of showing
either that the state court adjudication was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the United States or that the
state court adjudication 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.
Petitioner contends in his objections that the state habeas trial court did not address some of
his claims in its initial findings of fact and conclusions of law because the claims were submitted
in a second petition filed after the initial findings were entered. However, in response to a remand
order for the Court of Criminal Appeals, the State filed supplemental proposed findings of fact and
conclusions of law, as well as a supplemental response, on December 14, 2011.

The supplemental response noted that the claims in the second petition did not supplement
the application already before the court, but instead raised three completely new issues. However,
the State addressed the merits of the claims in case the Court of Criminal Appeals did consider the
new issues raised by petitioner.
The Texas Court of Criminal Appeals then denied petitioner’s state application for writ of
habeas corpus without written order. The denial of petitioner’s state habeas corpus application
necessarily denied all of Petitioner’s “fairly presented” ineffective assistance claims “on the merits.”
See Salazar v. Dretke, 419 F.3d 384, 395 (5th Cir.2005)(“In the context of federal habeas corpus
proceedings, adjudication ‘on the merits’ is a term of art that refers to whether a court’s disposition
of the case was substantive as opposed to procedural.”), cert. denied, 547 U.S. 1006, 126 S.Ct. 1467,
164 L.Ed.2d 252 (2006); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003), cert. denied, 540
U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004). Accordingly, petitioner’s objection is without
merit.
Petitioner’s remaining objections concerning the Magistrate Judge’s determinations also are
without merit. Federal habeas courts are not an alternative forum for trying facts and issues which
were insufficiently developed in state proceedings. Williams v. Taylor, 529 U.S. 420, 437 (2000).
Additionally, following the Supreme Court’s decision in Cullen v. Pinholster, federal habeas review
under 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim
on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Further, federal courts are required to give great deference to a state court’s factual findings.
See 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. This
presumption of correctness applies to both explicit findings of fact and those findings of fact implicit
in the state court’s mixed law and fact conclusions. Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th
Cir. 2001). The applicant has the burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal
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Appeals denies relief in a state habeas corpus application without written order, it is an adjudication
on the merits that is entitled to this presumption. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir.
1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
Here, for the reasons set forth in the Report, Petitioner has failed to satisfy his burden of
proof concerning the claims presented in this petition. Petitioner has not shown, as required by 28
U.S.C. § 2254(d), that the state court findings 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 resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceedings. Accordingly, Petitioner’s
objections are without merit, and the petition should be denied.
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Petitioner to the Report, the Court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct and Petitioner’s
objections are without merit. Therefore, the Court adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
is DENIED and the case is DISMISSED with prejudice. In addition, as the Magistrate Judge
concluded, a certificate of appealability should not issue and is hereby DENIED. All other motions
not previously ruled on are DENIED.
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SIGNED this the 31st day of March, 2016.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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