Hall v. Dir TDCJ

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATION for 34 Report and Recommendation. Signed by District Judge Robert W. Schroeder, III on 9/25/2018. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
MARVIN FRANK HALL,
Plaintiff,
v.
DIR TDCJ,
Defendant.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. 5:15-CV-00157-RWS

ORDER ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATE MAGISTRATE JUDGE
Petitioner Marvin Frank Hall, an inmate confined at the Ferguson Unit, 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 has submitted a Report and Recommendation (Docket No.
34) recommending the petition be dismissed.

Petitioner filed objections and amended

objections. Docket Nos. 37 and 42. 1 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). Having received
and considered the Report and Recommendation of United States Magistrate Judge, along with
the record, pleadings and all available evidence, the Court concludes Petitioner’s objections are
without merit and adopts the findings of the Report and Recommendation.
Between his objections and amended objections, Petitioner raises four arguments: (1) that
the blood test in this case was administered without a warrant and in violation of police policy; (2)
1

Both sets of objections have been considered and are addressed together.

that the police report filed in this action was falsified and the officer did not follow policy regarding
the administration of the breath test; (3) that the Magistrate Judge improperly relied on evidence
not in the record (i.e. the two prior convictions abandoned by the State) in the recommendation
to dismiss the case; and (4) that the copy of the DVD which Petitioner sent to the Court must be
tested for its authenticity.
While asserting that his blood test was administered without warrant or probable cause and
that the police report was falsified, Petitioner admits that he and the arresting officer knew each
other prior to the arrest. See Docket No. 37 at 2. Therefore, as the Magistrate Judge determined,
it was not unreasonable for the habeas court to find against Petitioner’s claims that Officer Daily
mistakenly administered the breath test to Christopher Bennett instead of Petitioner. Accordingly,
Petitioner’s objections regarding the administration of the blood test and the falsification of the
police report are without merit and should be denied.
Next, Petitioner requests that the copy of the DVD which he sent to the Court be tested for
its authenticity. As the Magistrate Judge found, Petitioner is attempting to relitigate the arguments
presented in the state application for habeas corpus, as well as present information he could have
possibly presented at trial. However, 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, because Petitioner entered a plea of guilty in this
case, he waived his right to trial and to have evidence presented and subjected to adversarial
examination.
To the extent Petitioner may attempt to assert a Brady claim regarding the DVD, the
evidence does not appear to have been withheld from counsel nor is it exculpatory. Accordingly,
Petitioner has failed to demonstrate a violation of his constitutional rights. The State has a duty to

Page 2 of 5

divulge exculpatory or impeachment evidence; failure violates a defendant’s right to due process.
Brady v. Maryland, 373 U.S. 83 (1963); Hampton v. State, 86 S.W.3d 603, 612
(Tex.Crim.App.2003). When challenging the State’s failure to disclose exculpatory evidence on
habeas, an applicant must show the following: (1) the state failed to disclose evidence, regardless
of the prosecution’s good or bad faith; (2) the withheld evidence is favorable to the applicant; and
(3) the evidence is material, that is, there is a reasonable probability that had the evidence been
disclosed, the outcome of the trial would have been different. Ex parte Richardson, 70 S.W.3d
865, 870 (Tex.Crim.App.2002). An applicant cannot show constitutional “materiality” by simply
alleging that a piece of undisclosed evidence “might have helped the defense[.]” Hampton v. State,
86 S.W.3d 603, 612 (Tex.Crim.App.2002) (quoting United States v. Agurs, 427 U.S. 97, 109-10
(1976)). Petitioner has failed to satisfy his burden. Moreover, Petitioner has failed to show the
state habeas court’s 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 objection is without merit and should be denied.
Petitioner also complains that the Magistrate Judge considered two prior convictions, which
had been abandoned by the state. However, the prior convictions were used to illustrate part of the
benefit Petitioner received by pleading guilty when the Magistrate Judge was reviewing the
reasonableness of the state court’s finding that Petitioner’s plea of guilty was knowingly and
voluntarily entered. Accordingly, Petitioner’s objection is without merit and should be denied.
As the Magistrate Judge found, Petitioner has failed to satisfy his burden of proof
concerning the habeas court’s findings that his plea of guilty was knowingly and voluntarily

Page 3 of 5

entered and counsel’s performance was constitutional. Petitioner has failed to show either 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. Therefore, Petitioner’s objections
should be overruled.
Finally, Petitioner is not entitled to the issuance of 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 movant 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 movant, 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).
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

Page 4 of 5

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.
The Court, having conducted a de novo review of the objection, record evidence and
pleadings, concludes the objections are without merit. See FED. R. CIV. P. 72(b). Accordingly,
Petitioner’s objections are OVERRULED. 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.
So ORDERED and SIGNED this 25th day of September, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

Page 5 of 5