Johnson v. Collier
Filing
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MEMORANDUM OPINION AND ORDER. It is therefore ORDERED the petition for writ of habeas corpus is DENIED, and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are DENIED. Signed by District Judge Amos L. Mazzant, III on 9/27/2019. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JEREMY JOHNSON, #1886485
VS.
DIRECTOR, TDCJ-CID
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CIVIL ACTION NO. 4:16cv704
MEMORANDUM OPINION AND ORDER
Petitioner Jeremy Johnson, represented by counsel, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner claims he is entitled to relief because his due process rights
were violated and his counsel was ineffective. For the reasons stated below, and after due
consideration, the Court will deny the petition.
PROCEDURAL BACKGROUND
Petitioner is challenging his Hopkins County conviction for possession of a controlled
substance with a deadly weapon, enhanced by two prior felony convictions. Cause No. 1323358A.
A jury found him guilty as charged and he was sentenced to sixty years’ confinement. On direct
appeal, the Sixth Court of Appeals affirmed the judgment. Johnson v. State, 06-13-00227-CR, 2014
WL 4695063 (Tex. App. – Texarkana, Sept. 22, 2014). The Texas Court of Criminal Appeals
(“TCCA”) refused Petitioner’s petition for discretionary review on February 11, 2015. It also denied
Petitioner’s state writ of habeas corpus without written order on June 15, 2016. Ex parte Johnson,
No. WR-84,618-01, 2016 WL 4916824 (Tex. Crim. App. June 15, 2016). Petitioner filed the instant
petition on September 13, 2016, asserting he is entitled to relief based upon both exhausted and
1
unexhausted or procedurally barred claims (unexhausted or procedurally barred claims appear in
italics) as grounds for relief:
1.
Petitioner’s due process rights were violated when the trial judge communicated ex
parte with the jury and allowed the jury to view the DVD - State’s Exhibit #1
a.
outside of Petitioner’s presence.
b.
Petitioner and his counsel were denied the right to be present during a
critical stage of trial, which amounted to constitutional error.
c.
Petitioner was denied his right to counsel during a critical stage of trial,
amounting to structural error, and reversible under United States v. Cronic,
466 U.S. 648, 659 (1984).
2.
Petitioner’s due process rights were violated when the trial court allowed the State
to question a witness concerning her knowledge of Petitioner’s parole status.
3.
Petitioner’s right to effective assistance of counsel was violated when counsel failed
to object to the ex parte communication of the judge
a.
and failed to object to Petitioner’s exclusion from the courtroom during the
jury’s review of the DVD, marked as State’s Exhibit #1.
Respondent filed a response, asserting Petitioner’s issues are procedurally barred and are without
merit. Petitioner did not file a reply.
FACTUAL BACKGROUND
The Sixth Court of Appeals provided the facts of the case in its opinion:
When the Hopkins County Sheriff's Office received a telephone call from Steven
Coursey reporting that a tan 2004 Cadillac sedan with license plate number
BN4V7110 was occupied by three white males and carrying a firearm and narcotics
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in the area near Highway 1567 and Highway 11 East, Deputy Dennis Findley, among
others, was dispatched to the area. Unable to locate the suspicious vehicle in the
identified area, Findley personally called Coursey, who advised that the vehicle might
be located at 1429 Church Street in Sulphur Springs. Coursey explained that the
narcotics and gun were located in the trunk of the vehicle.
On learning this information, Findley drove to the Church Street address, but did not
locate the vehicle. Findley then received a call from a fellow deputy that the
suspicious vehicle was traveling on Pipeline Road. Findley soon spotted the vehicle
at the corner of Pipeline Road and North Jackson Street, and he saw the vehicle head
north on North Jackson Street towards Church Street. As the vehicle approached the
intersection of Church Street and North Jackson Street, Findley observed the vehicle
roll through the stop sign and continue north on Church Street. At that point, Findley
activated the lights and siren on his patrol car. The tan Cadillac, which matched
Coursey's description, pulled into the driveway of 1429 Church Street.
Based on the information that the vehicle was carrying a gun and narcotics, a felony
traffic stop was initiated. Findley and his fellow officers at the location exercised
extreme caution by approaching the vehicle with their service weapons drawn in a
ready position. Robin Breckenridge, Johnson's mother and the driver of the tan
Cadillac, was removed and handcuffed together with Johnson, who had been seated
in the front passenger seat, and Brent Pelky, who had been seated in the back
passenger seat.
When Findley removed Pelky from the back passenger seat of the car, he
immediately noticed a “gun rug”—a pouch used for housing a gun—which
confirmed the information he received from dispatch and from Coursey that a firearm
was in the vehicle. After obtaining what he believed to be Breckenridge's consent to
search the vehicle, Findley asked Ryan Haley, a K–9 handler for the Texas
Department of Public Safety (DPS), to “run his dog” on the car. Thereafter, officers
conducted a manual search of the vehicle, which uncovered methamphetamine and
a .38 caliber handgun, both of which were concealed on opposite sides in the
vehicle's trunk.
Johnson, 2014 WL 4695063, at *1.
STANDARD FOR FEDERAL HABEAS CORPUS RELIEF
The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody
is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a
federal constitutional right. Lowery v. Collins, 988 F.2d 1354, 1367 (5th Cir. 1993). Federal habeas
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corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law,
unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v.
Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). In the course of reviewing state proceedings, a federal
court does not sit as a super state appellate court. Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir.
1986).
The prospect of federal courts granting habeas corpus relief to state prisoners has been further
limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The new
provisions of Section 2254(d) provide that an application for a writ of habeas corpus shall not be
granted with respect to any claim that was adjudicated on the merits in state court proceedings unless
the adjudication of the claim: (1) was contrary to federal law then clearly established in the holdings
of the Supreme Court; (2) involved an unreasonable application of clearly established Supreme Court
precedent; or (3) was based on an unreasonable determination of the facts in light of the record
before the state court. See Harrington v. Richter, 562 U.S. 86, 97-98 (2011). The statutory provision
requires federal courts to be deferential to habeas corpus decisions on the merits by state courts.
Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
A decision by a state court is “contrary to” the Supreme Court’s clearly established law if it
“applies a rule that contradicts the law set forth” in the Supreme Court’s cases. Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A federal court’s review of a decision based on the “unreasonable
application” test should only review the “state court’s ‘decision’ and not the written opinion
explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc). “Under
§ 2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas corpus court may not issue
the writ simply because that court concludes in its independent judgment that the relevant state-court
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decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at
411. Rather, that application must be objectively unreasonable. Id. at 409. The standard is satisfied
only if “reasonable jurists considering the question would be of one view that the state court ruling
was incorrect.” Davis v. Johnson, 158 F.3d 806, 812 (5th Cir 1998) (internal quotation marks and
citations omitted).
The trial court’s factual findings are entitled to a presumption of correctness unless the
petitioner can rebut the presumption with clear and convincing evidence to the contrary. Valdez v.
Cockrell, 274 F.3d 941, 947 (5th Cir. 2001). This presumption of correctness also applies to
unarticulated findings that are necessary to the state court’s conclusions of mixed law and fact. Id.
at 948 n. 11. This presumption is especially strong where the trial judge and the state habeas judge
are the same. Miller-El v. Johnson, 261 F.3d 445, 449, 454 (5th Cir. 2001) (citing Clark v. Johnson,
202 F.3d 760, 764, 766 (5th Cir. 2000)). A state application that is denied without written order by
the TCCA, as in the present case, is an adjudication on the merits. Singleton v. Johnson, 178 F.3d
381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (holding
a “denial” signifies an adjudication on the merits while a “dismissal” means the claim was declined
on grounds other than the merits). Additionally, federal habeas relief is foreclosed if a claim: (1) is
procedurally barred as a consequence of a failure to comply with state procedural rules, Coleman v.
Thompson, 501 U.S. 722 (1991); (2) seeks retroactive application of a new rule of law to a
conviction that was final before the rule was announced, Teague v. Lane, 489 U.S. 288 (1989); or
(3) asserts trial error that, although of constitutional magnitude, did not have a “substantial and
injurious effect or influence in determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993).
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PROCEDURAL BAR
Section 2254 does not allow a petitioner to file a petition for writ of habeas corpus unless he
is “in custody” and has exhausted his available state remedies. 28 U.S.C. § 2254(b)(1). A state
prisoner must exhaust all remedies available in state court before proceeding in federal court unless
circumstances exist that render the state corrective process ineffective to protect the prisoner's rights.
28 U.S.C. § 2254(b), ( c). To exhaust properly, he must “fairly present” all of his claims to the state
court. Picard v. Connor, 404 U.S. 270, 275 (1971). In Texas, all claims must be presented to and
ruled on by the Texas Court of Criminal Appeals (“TCCA”). Richardson v. Procunier, 762 F.2d
429, 430-31 (5th Cir. 1985); Deters v. Collins, 985 F.2d 789 (5th Cir. 1993). The exhaustion
doctrine was judicially crafted on federalism grounds to protect the state courts’ opportunity to
confront and resolve initially any constitutional issues arising within their jurisdiction and also to
limit federal interference in the state adjudicatory process. Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 489 (1973). If one or more of the petitioner’s claims is exhausted and one
or more of the claims is unexhausted, it is a “mixed” petition, and the entire petition may be
dismissed for failure to exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 510 (1982).
Furthermore, if the last state court to consider the claim expressly and unambiguously based
its denial of relief on a state procedural default, federal review of that claim is procedurally barred.
Coleman, 501 U.S. 722. Even if the state court explicitly invokes a procedural bar and alternatively
reaches the merits of a claim, a federal court is still bound by the state procedural default. Rocha v.
Thaler, 626 F.3d 815, 820-21 (5th Cir. 2010).
Additionally, petitioner must present his claims in a procedurally correct manner. Beazley
v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001). “A procedural default . . . occurs when a prisoner
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fails to exhaust available state remedies and ‘the court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.’” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), citing Coleman, 501
U.S. at 735 n.1.
In the instant case, Petitioner failed to exhaust: Issue 1a - the due process claim concerning
the jury being allowed to view the DVD outside of Petitioner’s presence; Issue 1b - the due process
claim that Petitioner and his attorney were denied the right to be present during a critical stage of
trial; Issue 1c - the due process claim that Petitioner was denied his right to counsel during a critical
stage of trial under Cronic; and Issue 3a - the ineffective assistance of counsel claim that counsel
failed to object to Petitioner’s exclusion from the courtroom during the jury’s review of the DVD.
These issues were not presented to the TCCA. If Petitioner were to present these claims now,
they would be considered procedurally barred. Id. Petitioner’s claims, thus, are also barred from
federal habeas review under the federal procedural default doctrine. Fearance v. Scott, 56 F.3d 633,
642 (5th Cir. 1995), cert. denied, 515 U.S. 1153 (1995) (the Texas abuse of the writ doctrine is an
adequate procedural bar for purposes of federal habeas review). The procedural bar may be
overcome only by demonstrating either cause and prejudice for the default or that a fundamental
miscarriage of justice would result from the court’s refusal to consider the claim. Id.; Finley v.
Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Petitioner fails to overcome the procedural bar by
demonstrating either cause and prejudice for the default or that a fundamental miscarriage of justice
would result from the court’s refusal to consider the claim. Fearance, 56 F.3d at 642. Accordingly,
these claims are procedurally barred from federal habeas review.
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Because Petitioner has presented at least one unexhausted issue, he has filed a mixed petition.
While this petition could be dismissed in its entirety as a mixed petition, in the interest of justice,
the Court will examine Petitioner’s exhausted claims.
DUE PROCESS
The Due Process Clause provides the guarantee of fair procedure related to a constitutionally
protected interest. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Due process guarantees that a
government actor cannot deprive a person of a constitutionally protected interest in life, liberty, or
property without adequate procedural protections. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S.
532, 533 1985). The key to a procedural due process claim is whether the petitioner was afforded
the quantity of process to which he was constitutionally entitled prior to the deprivation of a
protected interest. Id.
Petitioner claims he was denied due process because of the trial court’s ex parte
communication with the jury and the court’s agreement to allow the jury to view the DVD without
Petitioner being present. There is no evidence showing that counsel objected to the communication,
nor does Petitioner direct the Court to an objection. Accordingly, the alleged error is not preserved
for review. The Supreme Court has held that the procedural default of a state defendant who fails
to comply with the contemporaneous objection rule precludes federal habeas review of the claim,
absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The Court
notes that Petitioner also failed to raise the issue on direct appeal. The rationale of Sykes applies
when an issue is not raised on appeal. Ford v. Strickland, 696 F.2d 804k 816 (11th Cir. 1983)
(applying Sykes allows a “dual advantage of discouraging defense attorneys from omitting arguments
in preparing appeals with the intent of saving issues for federal habeas corpus consideration”).
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Petitioner failed to object and failed to show cause and prejudice for such failure; accordingly, the
issue is procedurally barred from federal habeas corpus review.
The Court notes that Petitioner ultimately raised the claim on state habeas review, and the
TCCA denied his petition without written order, which is an adjudication on the merits. Torres, 943
S.W.2d at 472. Petitioner is not entitled to relief for the additional reason that he fails to show that
the state court proceedings 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 proceeding. Richter, 562 U.S. at 97-98.
Petitioner also claims he was denied due process when the trial court allowed admission of
extraneous offenses elicited by the State through impeachment testimony, which alluded to
Petitioner’s prior convictions and parole status. To be entitled to relief on this claim, Petitioner must
show the error “had substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht, 507 U.S. at 637-38. Federal habeas relief is not provided unless a petitioner establishes the
error resulted in actual prejudice. Id. The appellate court considered this issue and found that the
error did not have a substantial and injurious effect on the jury’s verdict; accordingly, it did not
violate Petitioner’s constitutional rights. Johnson, 2014 WL 4695063. The appellate court provided
an extensive and thorough examination of this issue:
A. The Parole Status Evidence Was Inadmissible
Johnson's girlfriend, Sarah Shirley, testified that the narcotics the officers discovered
in the vehicle belonged to her. In light of this testimony, the State sought to elicit
testimony from Shirley regarding her knowledge of the fact that Johnson was on
parole in two different states. The State sought to elicit such testimony to impeach
Shirley's testimony and to expose her motive for testifying that the drugs belonged
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to her. Johnson's objection that the admission of evidence regarding his parole status
was irrelevant and prejudicial was overruled. On appeal, Johnson contends the trial
court erred in admitting this evidence. We agree.
We review a trial court's decision to admit or exclude evidence for abuse of
discretion. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App.2007). A trial court
abuses its discretion when its decision is so clearly wrong as to lie outside that zone
within which reasonable persons might disagree. Id.
The trial court ruled that the testimony regarding Johnson's parole state was
admissible under Rule 404(b) of the Texas Rules of Evidence to expose Shirley's
motive for testifying. See Tex.R. Evid. 404(b). Rule 404(b) renders inadmissible
evidence of the defendant's “other crimes, wrongs, or acts” designed to show that the
defendant committed the crime charged in the indictment, but allows the admission
of such evidence to prove the defendant's motive to commit the crime, among other
things. Tex.R. Evid. 404(b); see, e.g., Knox v. State, 934 S.W.2d 678, 683
(Tex.Crim.App.1996); Lopez v. State, 288 S.W.3d 148, 165 (Tex.App.-Corpus
Christi 2009, pet. ref'd); Massey v. State, 826 S.W.2d 655, 658 (Tex.App.-Waco
1992, no pet.); Peterson v. State, 836 S.W.2d 760, 762–63 (Tex.App.-El Paso 1992,
pet. ref'd); see also Hines v. State, 269 S.W.3d 209, 214 (Tex.App.-Texarkana 2008,
pet. ref'd).
In Hines, the State elicited testimony from the defendant's wife—for the proffered
purpose of impugning her credibility—that the defendant had previously been
imprisoned. Hines, 269 S.W.3d at 214. In recognizing that the trial court correctly
found that this evidence was “incredibly prejudicial” and “absolutely objectionable,”
we rejected the State's purported justification for offering the evidence. We stated,
The State attempts to justify the introduction of Hines's prior
penitentiary stay by relying on the statement in Moreno v. State, 22
S.W.3d 482, 485–86 (Tex.Crim.App.1999), that even “unadjudicated
crimes could be admissible to show a witness's bias or interest in the
particular case.” However, Moreno is easily distinguished because
although the witness being impeached was the defendant himself, he
had chosen to testify. Here, Hines had not testified and, indeed, never
testified in his own behalf during the guilt phase of the trial.
Id. We further stated,
“The general rule in all English speaking jurisdictions is that an
accused is entitled to be tried on the accusation made in the State's
pleading and not on some collateral crime, or for being a criminal
generally. The rule is now deemed axiomatic and is followed in all
jurisdictions.” Young v. State, 159 Tex.Crim. 164, 261 S.W.2d 836,
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837 (1953).
Id. Here, the trial court admitted the evidence regarding Johnson's parole status to
prove Shirley's motive for testifying, not for the purpose of proving any motive on
Johnson's part. Further, Johnson had not testified and never did testify on his own
behalf during the guilt phase of the trial. The testimony here, as in Hines, was not
admissible for any purpose, and its admission was error. See Montgomery v. State,
810 S.W.2d 372, 387 (Tex.Crim.App.1990) (if extraneous offense evidence has no
relevance apart from character conformity, then evidence absolutely [is] inadmissible
under Rule 404(b)); Hines, 269 S.W.3d at 214; see also Tex.R. Evid. 404(b).
B. Harm Analysis
Having determined that the evidence was erroneously admitted, we must now decide
whether its admission was so harmful as to require a new trial. The erroneous
admission of an extraneous offense does not constitute constitutional error.
Higginbotham v. State, 356 S.W.3d 584, 592 (Tex.App.-Texarkana 2011, pet. ref'd)
(citing Casey v. State, 215 S.W.3d 870, 885 (Tex.Crim.App.2007)). Rule 44.2(b) of
the Texas Rules of Appellate Procedure provides that an appellate court must
disregard a nonconstitutional error that does not affect a criminal defendant's
substantial rights. Tex.R.App. P. 44.2(b). An error affects a substantial right of the
defendant when the error has a substantial and injurious effect or influence in
determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997). Nonconstitutional error is not grounds for reversal if,“‘after examining the
record as a whole,’” there is “‘fair assurance that the error did not influence the jury,
or had but a slight effect.’” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
In assessing the likelihood that the jury's decision was adversely affected by the error,
we “ ‘consider everything in the record, including any testimony or physical evidence
admitted for the jury's consideration, the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be considered in
connection with other evidence in the case.’” Motilla, 78 S.W.3d at 357 (quoting
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).
The State argues that the trial court “appropriately gave a limiting instruction at the
time the evidence was admitted” and further notes that a written limiting instruction
was included in the court's charge. These instructions advised the jury that the
evidence regarding Johnson's parole status could only be considered for proof of
motive of the testifying witness, and for no other purpose. This Court addressed a
similar argument in Jackson v. State, 320 S.W.3d 873, 888 (Tex.App.-Texarkana
2010, pet. ref'd). In Jackson, the State introduced what was ultimately determined to
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be inadmissible extraneous-offense evidence. Id. at 887. In analyzing the resulting
harm, we concluded that the trial court's limiting instruction did not render the error
harmless:
As discussed above, the Kroger robbery should not have been
admitted to prove either identity or intent in the pawn shop murder.
Thus, the limiting instruction instructed the jury it could consider,
albeit for a limited purpose, evidence it should not have considered.
An instruction, which instructs a jury to consider inadmissible
evidence for a limited purpose, still instructs a jury to consider
inadmissible evidence. The evidence should not have been considered
for any purpose during the guilt/innocence phase of the trial. The
limiting instruction does not render the error harmless.
Id. at 888. Applying Jackson's reasoning to the facts presented here, the limiting
instruction did nothing to ameliorate any harm caused by the error in admitting the
evidence of Johnson's parole status.
We may also consider, in conducting a harm analysis, the presence of overwhelming
evidence of guilt. Motilla, 78 S.W.3d at 357 (“[O]ur conclusion ... that overwhelming
evidence of guilt is a factor to be considered ... applies to harm analysis conducted
under the current rules.”). In this case, Findley was advised by dispatch, and then
directly by Coursey, that Johnson was carrying drugs and a gun in the trunk of his
Cadillac on the day of Johnson's arrest. Coursey testified that he worked with
Johnson at Summit Energy in Como for two or three months. Coursey and Johnson
worked in a barn located in a pasture that passed as a paint shop. Coursey explained
that he was on community supervision and was “just tired of being around all the
dope.” So, on the day of Johnson's arrest, he called the sheriff's office to tell them
Johnson had a large quantity of narcotics that day, as well as a gun. According to
Coursey, Johnson, Johnson's brother Michael, and Pelky, who also worked at
Summit, would bring methamphetamine to work every day where they would smoke
it and sell it to “people who would pull up at the shop.” On the day he called the
sheriff's office, Coursey was offered a chance to purchase some of the
methamphetamine, which was located in the vehicle's trunk. At trial, Coursey
identified a photograph of the .38 caliber handgun that he saw in Johnson's car at
work.
Findley located Johnson's vehicle in the area described by Coursey and, on searching
the car, found methamphetamine and a .38 caliber handgun in the trunk in accordance
with Coursey's description of their location. Photographs of Johnson were discovered
on a cell phone found in the car, one of which was saved under the description “me”
in the phone's contacts list. This same phone contained pictures of a Dallas Cowboys
money clip and a black headband around another large sum of money. The cash
discovered on Johnson at the time of his arrest was packaged in the same manner as
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the money depicted on the cell phone. Another photograph saved on the cell phone
depicted a digital scale and a substance described as methamphetamine. The digital
scale in the photograph was the same brand as the scale found with the
methamphetamine in the trunk of Johnson's car at the time of his arrest.
This evidence, standing alone, is substantial and compelling evidence of Johnson's
guilt. The sole evidence that the drugs did not belong to Johnson came from Shirley,
who testified that she lived with Johnson and hid the methamphetamine in the trunk
of the Cadillac for her own use. Although Shirley told Findley on the day of
Johnson's arrest that the methamphetamine was hers, she could not tell Findley where
the drugs were located because, according to her, she was high. Shirley explained
that, because she was no longer employed and could not afford health insurance, she
was using the methamphetamine to self-medicate for anxiety. Shirley also admitted
to having a conversation with Johnson, after his arrest, in which he told her to say the
drugs were hers. At one point during her testimony, Shirley claimed
methamphetamine she disposed of inside of the house belonged to Pelky. Shirley
then testified that the drugs belonged to her. Shirley admitted to being untruthful on
the witness stand.
The trial court, addressing Johnson during the punishment phase and expressing
concern and dismay regarding Shirley's testimony, stated,
And, in fact, the idea that you would allow Ms. Shirley to get on that
stand and do what she did—the reality is, there probably isn't anybody
on planet earth that believed for a moment that those were hers and
you had no knowledge of them. There's probably nobody on planet
earth that believed that, that she clearly was taking the fall for you.
And that's disturbing.
The trial court's assessment of Shirley's testimony as incredible is telling. We do not
believe this evidence does anything to counteract the strength of the State's evidence
of Johnson's guilt. The compelling nature of the evidence of guilt weighs in favor of
a finding that the trial court's erroneous admission of testimony regarding Johnson's
parole status did not influence the jury, but this is not the sole factor in our analysis.
In addition to evidence of guilt, we are to assess “‘the character of the alleged error
and how it might be considered in connection with other evidence in the case.’”
Motilla, 78 S.W.3d at 357 (quoting Morales, 32 S.W.3d at 867). Here, the character
of the evidence of Johnson's parole status weighs in favor of a finding of harm. “By
its very nature, an improperly admitted extraneous offense tends to be harmful. It
encourages a jury to base its decisions on character conformity, rather than evidence
that the defendant committed the offense with which he or she has been charged.”
Jackson, 320 S.W.3d at 889.
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In considering how the erroneously admitted evidence might be considered in
connection with other evidence in the case, the emphasis by the State should be
considered. Id. at 890. The State's emphasis of the testimony that Johnson was a
parolee was minimal, and when considered in connection with the other evidence,
this testimony was very brief. Shirley's testimony regarding Johnson's parole status
consisted of only twenty-two lines in a multi-volume record. Compare DeLeon v.
State, 77 S.W.3d 300, 316 (Tex.App.-Austin 2001, pet. ref'd) (finding admission of
extraneous-offense evidence harmful where “[m]ore time was spent developing the
extraneous wrongdoing than proving the ultimate issues alleged in the indictment”).
The State never inquired into the underlying facts concerning the conduct that
resulted in Johnson's parole. Johnson's parole status was mentioned on two occasions
during closing argument. The first such mention was made by defense counsel.
Likewise, the State mentioned Johnson's parole status only once in closing argument.
Because the trial court overruled Johnson's objection, no instruction to disregard was
given by the trial court to alleviate any harm. Nevertheless, the bulk of the testimony
at trial concerned Johnson's alleged possession of methamphetamine, not his status
as a parolee. While the character of the evidence regarding Johnson's parole weighs
in favor of a finding of harm, the remaining factors favor a finding that the error did
not result in harm. Given the relatively modest, unembellished testimony on this
issue and the overwhelming evidence of Johnson's guilt, we have a fair assurance that
the error did not influence the jury or had but a slight effect in its determination that
Johnson was guilty of the charged offense.
Johnson, 2014 WL 4695063, at *6-10.
As the last reasoned state court opinion, the appellate opinion is entitled to deference. Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991). Petitioner presents the same issue he raised on appeal
and his PDR, but fails to demonstrate that the admission of his parole status had a substantial and
injurious effect on the jury’s verdict. Brecht, 507 U.S. at 637-38. Moreover, he fails to show how
the state court’s adjudication of the claim was unreasonable. Richter, 562 U.S. at 97-98.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner also asserts he is entitled to relief because his counsel was ineffective. To succeed
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s representation
fell below an objective standard of reasonableness,” with reasonableness judged under professional
14
norms prevailing at the time counsel rendered assistance. Strickland v. Washington, 466 U.S. 668,
688 (1984). The reviewing court must give great deference to counsel’s performance, strongly
presuming counsel exercised reasonable professional judgment. Id. at 690. The right to counsel
does not require errorless counsel; instead, a criminal defendant is entitled to reasonably effective
assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. 1981). See also Rubio v. Estelle, 689 F.2d
533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d 279 (5th Cir. 1984). Secondly, the petitioner
“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. Petitioner must
“affirmatively prove,” not just allege, prejudice. Id. at 693. If he fails to prove the prejudice
component, the court need not address the question of counsel's performance. Id. at 697.
In the context of § 2254(d), the deferential standard that must be accorded to counsel’s
representation must also be considered in tandem with the deference that must be accorded state
court decisions, which has been referred to as “doubly” deferential. Richter, 562 U.S. at 105.
“When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id. “If the standard is difficult to meet, that is because it was meant to be.” Id. at 102;
see also Morales v. Thaler, 714 F.3d 295, 302 (5th Cir. 2013).
Petitioner claims counsel was ineffective when he failed to object to the trial judge’s ex parte
communication with the jury. A failure to object does not constitute deficient representation unless
a sound basis exists for objection. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (a futile
or meritless objection cannot be grounds for a finding of deficient performance). Even with such
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a basis, however, an attorney may render effective assistance despite a failure to object when the
failure is a matter of trial strategy. See Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) (noting
that a failure to object may be a matter of trial strategy as to which courts will not second guess
counsel). Failure to make frivolous objections does not cause counsel’s performance to fall below
an objective level of reasonableness. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).
On habeas review, federal courts do not second-guess an attorney’s decision through the distorting
lens of hindsight, but rather, the courts presume that counsel’s conduct falls within the wide range
of reasonable professional assistance and, under the circumstances, that the challenged action might
be considered sound trial strategy. Strickland, 466 U.S. at 689.
Petitioner alleges counsel should have objected to the judge’s ex parte communication with
the jury. He claims counsel’s failure allowed his due process rights to be violated. The Supreme
Court provided several reasons why ex parte comunications should be avoided in United States v.
U.S. Gypsum, Co., 438 U.S. 422 (1978) (unpredictable direction a conversation might take, the risk
that a juror will unwittingly provide misstatements of the law, and the absence of counsel and
unavailability of a transcript aggravate the problem of having one juror serve as a “conduit”). To
determine whether a constitutional violation occurred as a result of an ex parte communication, the
Supreme Court has held that a reviewing court should balance the defendant’s fundamental right to
be present with society’s interest in the administration of criminal justice. See Rushen v. Spain, 464
U.S. 114 (1983). When an ex parte communication occurs in some aspect of the trial, the trial judge
generally should disclose the communication to all parties. Id. at 119. There is no automatic
presumption of harm, however, just because an ex parte communication occurred. Id. at 133.
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In this case, there was a DVD containing footage from the police officer’s dash cam.
Portions were shown during the trial, but certain portions were muted because it was determined
some of the evidence on the DVD was inadmissible. The jury requested to review the DVD during
its deliberations. Acknowledging the inherent problems with showing only portions of the DVD,
the judge said, “I’m not real sure how we’re going to do that. It may just be that we have to play the
whole thing in its entirety.” The judge recalled what he had done in a similar situation – he
instructed a jury that they would play the recording in the presence of the attorneys, but instructed
them not to deliberate while he and the attorneys were in the room. After both parties agreed this
plan was appropriate to the current circumstances, the judge spoke with the jury foreman to
determine if the jury wanted to see a portion of the DVD or the entire DVD. The foreman told the
judge that the jury wanted it played in its entirety. The judge disclosed this information to both
parties in accordance with Rushen. This was the extent of the communication. The judge stated on
the record that the attorneys for both sides would be present and the prosecutor would run the video,
just as when it was published to the jury during trial. Portions of the DVD would be muted, as in
trial.
There is no evidence that the communication between the judge and the jury concerned
anything other than what was placed on the record. There is nothing to show that the judge
inadvertently provided his subjective, personal views, or created a risk of misunderstanding or
misinterpretation of the law as shown in United States v. Peters, 349 F.3d 842 (5th Cir. 2003) (judge
provided his subjective personal views to return a verdict, created a risk of misunderstanding and
misinterpretation of the law, and counsel was not present). There was no objection to the ex parte
communication or to the jury reviewing the DVD. Petitioner’s speculative and conclusory
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allegations are insufficient to entitle him to relief. Koch v. Puckett, 907 F.2 524, 530 (5th Cir.
1990). Petitioner raised this issue in his state writ of habeas corpus, and the TCCA denied the writ.
This ruling is entitled to a presumption of correctness. Petitioner fails to overcome the presumption
of correctness with clear and convincing evidence. Valdez, 274 F.3d at 947.
In sum, no harm was established by the judge’s ex parte communication to the jury.
Accordingly, Petitioner fails to show that counsel was ineffective for failing to object to the
communication. The judge followed proper procedures by disclosing what was said to both parties.
Rushen, 464 U.S. at 118-19. The Court also notes that Petitioner was not entitled to be present for
the viewing of the DVD as this was part of the jury’s deliberations. Petitioner fails to show that, had
counsel objected, the court would have sustained the objection and that it would have changed the
outcome of the trial. Strickland, 466 U.S. at 694. Petitioner fails to show the TCCA’s denial was
objectively unreasonable under th AEDPA. Richter, 562 U.S. at 97-98.
EVIDENTIARY HEARING
Finally, Petitioner requests an evidentiary hearing. However, his claims were adjudicated
on the merits in state court and he fails to satisfy the requirement of 28 U.S.C. § 2254(d)(1). The
Supreme Court has held that a federal court’s evaluation of a state court decision:
is limited to the record that was before the state court that adjudicated the claim on
the merits. Section 2254(d)(1) refers, in the past tense, to a state court adjudication
that “resulted in” a decision that was contrary to, or “involved” an unreasonable
application of, established law. This backward-looking language requires an
examination of the state court decision at the time it was made. It follows that the
record under review is limited to the record in existence at that same time, i.e., the
record before the state court.
Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). Because the TCCA denied Petitioner’s state writ
on the merits, this Court’s review must be limited to the record. Singleton v. Johnson, 178 F.3d 381,
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384 (5th Cir. 1999). The Court also recognizes that a concurrence was issued concerning
Petitioner’s ineffective assistance of counsel claims, which includes his underlying due process
claim. The concurring opinion states that Petitioner “has presented nothing more than a frivolous
or facially non-meritorious claim.” (Dkt. #11-16). The concurrence concluded by stating that, after
considering the pleadings liberally and the complaints based on their substance, Petitioner had not
presented “any colorable ineffective assistance claims.” Id.
Petitioner’s claims do not rely on a new rule of constitutional law, or a factual predicate that
could not have been previously discovered, and the facts underlying the claims were not sufficient
to establish that no reasonable fact finder would have found Petitioner guilty, but for constitutional
error. 28 U.S.C. § 2254(e)(2). Petitioner fails to show he is entitled to an evidentiary hearing.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the Court of Appeals from a final order in a proceeding under
§ 2254 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Petitioner has not yet filed a notice of appeal, the Court will address
whether Petitioner would be entitled to a certificate of appealability. See Alexander v. Johnson, 211
F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate of appealability
because “the district court that denies a petitioner relief is in the best position to determine whether
the petitioner has made a substantial showing of a denial of a constitutional right on the issues before
the court. Further briefing and argument on the very issues the court has just ruled on would be
repetitious.”).
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
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the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected constitutional
claims on the merits, the petitioner must demonstrate “that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell, 327
F.3d 429, 431 (5th Cir. 2003). When a district court denies a motion on procedural grounds without
reaching the underlying constitutional claim, a certificate of appealability should issue when the
Petitioner shows, at least, that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. Id.
In this case, reasonable jurists could not debate the denial of Petitioner’s § 2254 petition on
substantive or procedural grounds, nor find that the issues presented are adequate to deserve
encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003) (citing Slack,
529 U.S. at 484). Accordingly, Petitioner is not entitled to a certificate of appealability.
.
It is therefore ORDERED the petition for writ of habeas corpus is DENIED, and the case
is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not
previously ruled on are DENIED.
SIGNED this 27th day of September, 2019.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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