Pardee v. Director, TDCJ-CID

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, for 23 Report and Recommendation. It is ORDERED that Pardee's objections (Dkt. 25) are OVERRULED. It is further ORDERED that the Report and Recommendation of t he Magistrate Judge (Dkt. 23) is ADOPTED. It is further ORDERED that the above-styled Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) is DENIED and that the case is hereby DISMISSED WITH PREJUDICE. It is further ORDERED that any motion not previously ruled on is DENIED. Signed by Judge Richard A. Schell on 3/31/2017. (kls, )

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

TABOR RYAN PARDEE
v.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:14CV502

ORDER ADOPTING REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge (the “Report”) (Dkt. 23), which
contains her findings, conclusions, and recommendation for the disposition of Pardee’s Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), has been presented
for consideration. The Report recommends that the Petition be denied and the case dismissed
with prejudice. Pardee has filed written objections (Dkt. 25). Having made a de novo review
of the objections, the court concludes that the findings, conclusions, and recommendation
of the Magistrate Judge are correct.
Pardee first objects to the Magistrate Judge’s conclusion that sufficient evidence supports
his conviction for burglary of a habitation under Texas Penal Code Section 30.02(a). See Dkt. 25
at 1. He contends the State produced no evidence of an essential element of the crime: entry of a
habitation. This argument lacks merit.
It is well settled in Texas that a defendant’s unexplained possession of recently stolen
property permits an inference by the fact-finder that the defendant is the person who stole the
property. See, e.g., Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006) (burglary);
Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984) (larceny); Hardesty v. State, 656
S.W.2d 73, 76–77 (Tex. Crim. App. 1983) (larceny); Willis v. State, 55 S.W. 829, 829 (Tex. Crim.
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App. 1900) (burglary). When a defendant offers an innocent explanation for his possession of
recently-stolen property, it is up to the fact-finder to determine whether the explanation is true or
reasonable. See Middleton v. State, 187 S.W.3d 134, 139 (Tex. App.–Texarkana 2006).
In this case, there was no dispute that Pardee was found in possession of property stolen in
a burglary mere hours after the crime occurred. See Dkt. 6-7 at 108-09, 112. At trial, Pardee
attempted to provide an innocent explanation for his possession of the property. He asserted that
he had received some of the items from the true culprit, Bobby Clinton, as repayment of a debt.
See id. at 107-08, 112. Pardee maintained that he had purchased the remaining items with the
intent to return them to the victim and, thereby avoid suspicion in the burglary. See id. at 113.
However, Pardee’s explanation was uncorroborated and improbable. Under the circumstances,
the jury was entitled to disbelieve Pardee’s explanation and find him guilty of the burglary
charge. Pardee’s remaining objections challenge the Magistrate Judge’s conclusion that he failed
to demonstrate ineffective assistance of counsel based on (1) his attorney’s alleged “failure to
convey a proper plea agreement” and (2) counsel’s decision not to subpoena Clinton. Dkt. 25 at 1.
As the Magistrate Judge noted, Pardee’s ineffective assistance claims are governed by the familiar
two-prong standard in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a
defendant to show both deficient performance by counsel and prejudice to the defense. Pardee fails
to carry this burden.
With respect to counsel’s performance during the plea bargaining process, Pardee
complains that counsel only managed to negotiate a plea arrangement under which Pardee was
required to plead guilty to charges of burglary of a habitation and forgery in exchange for the
State’s recommendation of thirty (30) year and twenty (20) year sentences, respectively. See Dkt.
25 at 1. Pardee contends that since the State ultimately dismissed the forgery charge, counsel

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should have obtained a plea offer that did not require entry of a guilty plea or punishment on the
forgery charge. See id. Pardee also asserts that, had counsel obtained such an offer, he would have
accepted it rather than proceed to trial. See id. But Pardee provides no indication that the State
would have been amenable to a plea deal involving a guilty plea and sentence on the burglary
charge alone, or that the trial court would have accepted such an offer. This purely speculative
claim warrants no habeas relief. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983)
(holding that mere conclusory allegations, which are unsupported and unsupportable by anything
else contained in the record, do not raise a constitutional issue in a § 2254 proceeding).
Moreover, Pardee did not challenge his counsel’s failure to negotiate a more favorable plea
offer in his Petition. Rather, he argued that counsel withheld ten (10) year and fifteen (15) year
plea offers by the State until after the applicable deadlines for acceptance had passed. See Dkt. 1
at 9. The Magistrate Judge considered, and rightly rejected, this argument as unsupported by the
record. See Estelle, 694 F.2d at 1011-12. Pardee’s new argument is not subject to the court’s federal
habeas review. See Rule 2(c) of the Rules Governing Section 2254 Proceedings for the United
States District Courts.
In Pardee’s final objection, he asserts that his counsel’s decision not to subpoena Clinton
constituted prejudicially deficient performance. See Dkt. 25 at 1. In order to demonstrate the
required Strickland prejudice in the context of counsel’s failure to call a witness, a defendant must
show not only that the allegedly missing witness’s testimony would have been favorable, but also
that the witness would have testified at trial. See Alexander v. McCotter, 775 F.2d 595, 602 (5th
Cir. 1985) (citing Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981)). Pardee offers nothing more
than speculation that Clinton would have testified favorably to the defense. Pardee conjectures that
Clinton would have admitted to committing the burglary himself, without Pardee’s involvement,

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thus corroborating Pardee’s explanation for possession of goods recently-stolen from the victim’s
residence. But Pardee’s conclusory allegations about the substance of Clinton’s testimony are not
enough to resolve the issue. Furthermore, the court agrees with the Magistrate Judge’s assessment
that Clinton was unlikely to have testified in the manner suggested by Pardee because such
testimony would have exposed Clinton to criminal liability.
Pardee also asserts, for the first time and without explanation, that Clinton’s availability at
trial would have rendered purportedly favorable hearsay statements admissible at trial. This
argument is not only speculative, but contrary to the rules of evidence. See TEX. R. EV. 802, 803,
804. Thus, Pardee fails to show counsel’s failure to subpoena Clinton was prejudicial.
In light of the foregoing, it is ORDERED that Pardee’s objections (Dkt. 25) are
OVERRULED.
It is further ORDERED that the Report and Recommendation of the Magistrate Judge
(Dkt. 23) is ADOPTED.
It is further ORDERED that the above-styled Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Dkt. 1) is DENIED and that the case is hereby DISMISSED
WITH PREJUDICE.
It is further ORDERED that any motion not previously ruled on is DENIED.

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SIGNED this the 31st day of March, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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