Harrison v. Dir of TDCJ

Filing 33

ORDER OVERRULING OBJECTIONS AND ADOPTING 28 REPORT AND RECOMMENDATIONS. Signed by Judge Robert W. Schroeder, III on 3/31/2017. (sm, )

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

WILLIAM JOSEPH HARRISON

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 5:13cv124

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner William Joseph Harrison, an inmate confined at the Stiles Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate
Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends the petition for writ of habeas corpus should be denied and
dismissed.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available
evidence.
Petitioner filed objections to the Magistrate Judge’s Report and Recommendation
and requests a hearing on his objections. This requires a de novo review of the objections in
relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After thorough
consideration of the pleadings, the Court concludes Petitioner’s objections should be overruled.

Objections and Analysis
I.

Ineffective Assistance of Counsel
In his first objection, Petitioner contends he was denied effective assistance of counsel at trial
because counsel failed to call potential alibi witnesses. Petitioner asserts that alibi witnesses were
available, ready to testify, and would have changed the outcome of the case had they been called.
Further, Petitioner alleges counsel lied in her affidavit submitted to the state habeas court.
“Complaints of uncalled witnesses are not favored in federal habeas corpus review because
allegations of what the witnesses would have testified are largelyspeculative.” Lockhart v. McCotter
782 F.2d 1275, 1282 (5th Cir. 1986). “Where the only evidence of a missing witness’ testimony is
from the defendant, this Court views claims of ineffective assistance with great caution.” Id.
Petitioner did not provide the state court with affidavits (or similar evidence) from any of the
potential favorable witnesses indicating they would have been available to testify and
suggesting to what they would have testified. He presented his own unsworn affidavit in his
second petition when attacking his family violence conviction, but he failed to present any
affidavits from his potential alibi witnesses indicating they would have been available to
testify and suggesting to what they would have testified.
Even accepting as true petitioner’s claim that counsel lied in her affidavit to the
state habeas court, without evidentiary support in the form of affidavits from the potential
witnesses, the Court cannot conclude that the state court’s determination was either 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. See Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2000)

2

(reversing district court where petitioner failed to provide affidavits from alleged eyewitness
or indicate what testimony the eyewitness would give.); see also Bruce v. Cockrell, 74 F. App’x
326 (5th Cir. 2003) (rejecting Strickland claim because petitioner “did not submit any
affidavits by the uncalled witnesses themselves, or offer any evidence that they would have
been willing to testify at the punishment phase of the trial.”). Further, given the overwhelming
evidence of Petitioner’s guilt, Petitioner has failed to show there is a reasonable probability the
calling of his proposed witnesses would have changed the outcome of the case. Accordingly,
Petitioner has failed to demonstrate prejudice with respect to his claim of counsel’s alleged
deficient performance. See Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (holding that
the “mere possibility of a different outcome” is not sufficient proof of prejudice to support a
finding of ineffective assistance of counsel).
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).
Further, 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).
Here, for the reasons set forth above and in the Report, Petitioner has failed to satisfy
his burden of proof concerning the claims. Petitioner has failed to show the state court’s
determination was either contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States or 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. Accordingly,
Petitioner’s objections are overruled and his claims are denied.

3

II.

Classification of Offenses
Next, Petitioner complains that the state appellate court’s determination regarding the proper
felony level of his offenses was erroneous. Petitioner claims both of his convictions should be listed
on his official prison record as third degree felonies, and he should have been sentenced to
no more than twenty (20) years’ punishment on each conviction.
The Court interprets Petitioner’s claim to contest as erroneous the state appellate court’s
modification of his judgment to reflect he was convicted of a third degree felony enhanced by two
prior convictions instead of a first degree felony. The appellate court held that the trial court’s nunc
pro tunc judgment was void when entered because the trial court had lost jurisdiction.
While Petitioner raised a ground for review concerning this issue on direct appeal, he failed
to raise it as a ground for review in this habeas proceeding. Further, even if the claim were
determined to be properly before this Court, the Court finds the claim lacking in merit. Petitioner
has failed to show the appellate court did not have authority to modify the judgment. Moreover,
federal habeas 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 (1996). In the course of reviewing state proceedings, a federal
habeas court does “not sit as a super state supreme court to review error under state law.” Wood v.
Quarterman, 503 F.3d 408, 414 (5th Cir. 2007); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir.
1983). Petitioner has not shown how the appellate court’s modification of his judgment violated a
specific constitutional right or rendered his trial fundamentally unfair. Petitioner has not shown a
basis for federal habeas corpus relief. Further, Petitioner has failed to show prejudice related to his
claim.
To the extent Petitioner’s objection is interpreted as a challenge to the trial court’s failure to

4

provide a lesser-included offense jury instruction for the offense of assault family violence,
Petitioner has failed to raise a meritorious claim upon which federal habeas relief may be granted.
Further, Petitioner has failed to show 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. Accordingly, Petitioner’s grounds for relief are denied. Further, having
considered the Report of the Magistrate Judge and Petitioner’s objections, the Court finds that a
hearing on the objections is unnecessary.
III.

Certificate of Appealability
Additionally, Petitioner is not entitled to a certificate of appealability. An appeal from a
judgment denying federal habeas corpus relief may not proceed unless a judge issues a certificate
of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting a certificate
of appealability, like that for granting a certificate of probable cause to appeal under prior law,
requires the movant 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); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial showing,
the petitioner need not establish that he should 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
is 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.

5

849 (2000).
Here, Petitioner has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason. The factual and legal questions advanced by the movant are not
novel and have been consistently resolved adversely to his position. In addition, the questions
presented are not worthy of encouragement to proceed further. Therefore, Petitioner has failed to
.
make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly,
a certificate of appealability shall not be issued.
ORDER
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.
SIGNED this 31st day of March, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

6