Davis v. Davis

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 24 Report and Recommendation. Accordingly, Petitioners objections (Docket No. 26) are OVERRULED. The findings of fact and conclusions of law of the Magistrate Judge are correct, and the report of th e Magistrate Judge (Docket No. 24) is ADOPTED. A final judgment will be entered in this case in accordancewith the Magistrate Judges recommendation. A certificate of appealability will not be issued. Signed by District Judge Robert W. Schroeder, III on 07/28/20. (lfs, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
TERRENCE L DAVIS,
Plaintiff,
v.
LORIE DAVIS, DIRECTOR OF TDCJ;
Defendant.

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§ CIVIL ACTION NO. 5:17-CV-00178-RWS
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ORDER

Petitioner Terrence L. Davis, a prisoner confined at the Ferguson Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, petitioned for writ of habeas
corpus under 28 U.S.C. § 2254. The Court referred that petition to the Honorable Caroline Craven,
who recommended it be denied. Petitioner objected. Docket No. 26. After de novo review, those
objections are OVERRULED, and the petition is DENIED.
First, sufficient evidence supports Petitioner’s conviction. He contends there was no
evidence to support his conviction for aggravated robbery, but on direct appeal and in the state
habeas proceedings, the state courts determined that there was sufficient evidence. Because a
rational trier of fact could have found the essential elements of the offense of aggravated assault
beyond a reasonable doubt, the state court’s findings were not objectively unreasonable. Jackson
v. Virginia, 443 U.S. 307, 320 (1979).
Second, Petitioner’s ineffective assistance claims fail. He contends that his attorney
provided ineffective assistance of counsel for two reasons: failing to raise a speedy trial claim and
failing to investigate, hire an expert witness, interview witnesses and call witnesses to testify at
trial. Neither reason is persuasive. For the speedy-trial issue, Petitioner’s counsel filed a motion

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for a speedy trial on October 22, 2014. The trial court did not rule on that motion, but trial
commenced a few months later. Regardless, because counsel raised the speedy trial claim, this
claim of ineffective assistance of counsel lacks merit. On the remaining issues, the trial court found
that Petitioner did not meet the Strickland standard of proving counsel performed deficiently or
that the allegedly deficient performance prejudiced Petitioner’s defense. Strickland v. Washington,
466 U.S. 668, 694 (1984). The trial court’s findings were a reasonable application of Strickland.
See Harrington v. Richter, 526 U.S. 86, 101 (2011).
Third, Petitioner’s Brady claims fail. See Brady v. Maryland, 373 U.S. 83 (1963). He
alleges that the prosecutor withheld information that Toni Rutledge had made a voice identification
of Petitioner. To prevail on a Brady claim, a petitioner must prove that the prosecution suppressed
evidence that is materially favorable to the accused because it is exculpatory or impeaching.
Stickler v. Greene, 527 U.S. 263, 281–82 (1999). On state habeas review, the trial court found that
the prosecutor did not have a duty under Brady to disclose the voice identification prior to trial
because it was not exculpatory and could not have been used by Petitioner for impeachment
purposes. The state court’s rejection of this claim was not contrary to, and did not involve an
unreasonable application of, clearly established federal law.
Fourth, Petitioner’s actual-innocence claim is unavailing.

He attempts to raise a

freestanding claim of actual innocence, which is not a ground for federal habeas relief. McQuiggin
v. Perkins, 569 U.S. 383, 392 (2013); Burton v. Stephens, 543 F. App’x 451, 458 (5th Cir. 2013);
Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000).

In any event, the claim lacks merit

because Petitioner did not present any newly discovered evidence that would have resulted in his
acquittal.

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Fifth, Petitioner is not permitted leave to plead his newly added claims. For the first time
in his objections, Petition claims that (1) he was denied due process because the voice identification
was impermissibly suggestive, in violation of Neil v. Biggers, 409 U.S. 188, 200-201 (1972); that
(2) he was denied his Sixth Amendment right to counsel because the voice identification was made
outside the presence of defense counsel; and that (3) counsel provided ineffective assistance for
failing to object that the jury instructions did not include an instruction on lesser-included offenses.
Because these claims were not raised in prior pleadings, the Court construes the objections as a
motion for leave to amend the petition.
Rule 12 of the Rules Governing Section 2254 Proceedings provides that the Federal Rules
of Civil Procedure apply to § 2254 motions, as long as they are not inconsistent with any statutory
provisions or the Rules Governing Section 2254 Proceedings. Therefore, Petitioner’s ability to
amend the petition is governed by Rule 15 of the Federal Rules of Civil Procedure. United States
v. Saenz, 282 F.3d 354, 355 (5th Cir. 2002).
Because the respondent has served a responsive pleading more than 21 days before
Petitioner’s objections, Petitioner may only amend by leave of court or with the respondent’s
written consent. See FED. R. CIV. P. 15(a)(2). The respondent has not consented to the amendment
in writing, so Petitioner must have leave of court to amend. In determining whether to grant leave
to amend, the Court must consider the following factors: (1) whether permitting the pleading will
cause undue delay in the proceedings or undue prejudice to the nonmovant, (2) whether the movant
is acting in bad faith or with a dilatory motive, (3) whether the movant has previously failed to
cure deficiencies by prior pleadings and (4) if the proposed pleading is futile. United States ex rel.
Willard v. Humana Health Plan, 336 F.3d 375, 386–87 (5th Cir. 2003) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)).

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There is no indication that the respondent acted in bad faith or that granting the motion
would cause the respondent undue prejudice. But allowing Petitioner to amend at this point would
necessarily cause delay. Further, it would be futile to allow Petitioner to amend because the new
grounds for review were not exhausted in the state courts. See 28 U.S.C. § 2254(b) (requiring
prisoners to exhaust available state remedies before proceeding in federal court unless there are
circumstances that render the state corrective process ineffective to protect the prisoner’s rights).
Therefore, Petitioner is denied leave to amend.
Additionally, in this case, 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 a 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); see also Barefoot v. Estelle, 463 U.S. 880,
893 (1982). In making that substantial showing, a 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; Avila
v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the petition was denied on procedural
grounds, a petitioner must show that jurists of reason would find it debatable: (1) whether the
petition raises a valid claim of the denial of a constitutional right, and (2) whether the district court
was correct in its procedural ruling. Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328. Any doubt
regarding whether to grant a certificate of appealability is resolved in favor of the petitioner, and

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the severity of the penalty may be considered in making this determination. See Miller v. Johnson,
200 F.3d 274, 280–81 (5th Cir. 2000).
Petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason or that a procedural ruling was incorrect. The factual and legal questions
advanced by Petitioner 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. Petitioner
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has failed to make a sufficient showing to merit the issuance of a certificate of appealability.
***
Accordingly, Petitioner’s objections (Docket No. 26) are OVERRULED. The findings of
fact and conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate
Judge (Docket No. 24) is ADOPTED. A final judgment will be entered in this case in accordance
with the Magistrate Judge’s recommendation. A certificate of appealability will not be issued.

So ORDERED and SIGNED this 28th day of July, 2020.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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