Krajcovic v. Stephens, Director TDCJ-CID

Filing 23

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION for 17 Report and Recommendations. The findings of fact and conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ADOPTED. Signed by Judge Amos L. Mazzant, III on 9/7/2017. (daj, )

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

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:14-CV-554

MEMORANDUM ORDER OVERRULING OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Paul Joseph Krajcovic, a prisoner confined at the Michael Unit of 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.
The Court referred this matter to the Honorable Christine A. Nowak, United States
Magistrate Judge, at Sherman, Texas, for consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge recommends the petition be denied on the merits.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Petitioner filed
objections to the Report and Recommendation of United States Magistrate Judge. This requires a
de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV.
P. 72(b).
At the outset, the Court notes that petitioner’s “objections” are not substantive objections to
the findings of the Magistrate Judge but rather reassertions of his original points of error. See
Petitioner’s Krajcovic’s Response to Report and Recommendation of United States Magistrate Judge
(docket entry no. 22). Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district court. See Nettles
v. Wainwright, 677 F.2d 404, n. 8 (5th Cir. 1982) (overruled on other grounds). The Court, however,
has liberally construed the response as objections to the specific finding of the Magistrate Judge that
petitioner has failed to establish “fundamental unfairness” or that the lack of instruction had a

“substantial and injurious effect or influence in determining the jury’s verdict.” After careful
consideration, the Court finds the objections lacking in merit.
Petitioner continues to argue in an effort to prove “fundamental unfairness” that when there
is “some evidence” of a defensive issue, such an instruction is to be given to the jury. As outlined
by the Magistrate Judge, however, the overwhelming evidence presented at trial contradicts the
theory of self-defense. The Texas Court of Criminal Appeals found on state habeas review– “[t]here
was no evidence to support the defense.” Krajcovic v. State, PDR No. 1632-11, 393 S.W.3d 282,
283-84 (Tex. Crim. App. 2013). Regardless of whether petitioner had the duty to retreat, the
principal question before the jury was whether petitioner acted in self-defense when he shot the
victim. In light of the record as a whole, any alleged trial court error in failing to instruct the jury
on the Castle Doctrine1 could not have resulted in a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Furthermore, even if the jury was instructed on the Castle Doctrine, Texas law precludes a
finding of self-defense when the force used was not “immediately necessary to protect the actor
against the other’s use or attempted use of unlawful force.” See TEX. PENAL CODE 9.31(a). In
addition, Texas law precludes a finding of self-defense when the defendant was otherwise engaged
in criminal activity when the use of force occurred. Id. 9.31(a)(3). Given the evidence presented at
trial that petitioner was the aggressor in this case and that he was involved in an illegal drug-related
activity at the time of the shooting, Texas law precluded a finding of self-defense even under the
Castle Doctrine.
Petitioner has failed to demonstrate any trial court error which denied him fundamental
unfairness. Petitioner has also failed to demonstrate the denial of relief on this claim by the Texas

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Before September 1, 2007, deadly force under Texas Penal Code Section 9.32(a) was justified only “if a
reasonable person in the actor’s situation would not have retreated.” The Castle Doctrine was made effective on
September 1, 2007. It relieves a person of the duty to retreat when he is justified in using deadly force against another
if (1) he has a right to be present at the location where the deadly force is used, (2) he has not provoked the person
against whom the deadly force is used, and (3) he is not engaged in criminal activity at the time that the deadly force is
used. See TEX. PENAL CODE § 9.32(c).

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Court of Criminal Appeals was somehow unreasonable. Accordingly, petitioner’s objections are
overruled.
The findings of fact and conclusions of law of the Magistrate Judge are correct and the report
of the Magistrate Judge is ADOPTED. A final judgment will be entered in this case in accordance
with the Magistrate Judge’s recommendations.
In addition, the Court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not proceed
unless a judge issues a certificate of appealability. 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, 483-84 (2000); Elizalde v. Dretke,
362 F.3d 323, 328 (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 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 doubt regarding whether to grant a certificate of appealability should be resolved in favor of the
petitioner, and the severity of the penalty may be considered in making this determination. See

.
Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
In this case, petitioner has not shown that the issues of concern are subject to debate among
jurists of reason or worthy of encouragement to proceed further. As a result, a certificate of
appealability shall not issue in this matter.

SIGNED this 7th day of September, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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