Lawler v. Director, TDCJ-CID

Filing 23

ORDERED that the petition for a 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 hereby denied. Signed by Judge Ron Clark on 8/2/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
SHAUN MARK LAWLER, #1812149

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:14cv651

ORDER OF DISMISSAL
Petitioner Shaun Mark Lawler, an inmate confined in the Texas prison system, filed the
above-styled and numbered petition for a writ of habeas corpus challenging his Smith County
conviction for aggravated assault with a deadly weapon, in violation of the state laws of Texas. Mr.
Lawler entered an open plea of guilty, was found guilty, and was sentenced to fifty-five years in
prison.
The federal petition was referred to United States Magistrate Judge John D. Love, who issued
a Report and Recommendation on June 14 2017, concluding that the petition for a writ of habeas
corpus should be dismissed with prejudice. (Dkt. #14). Petitioner filed objections to the Report and
Recommendation. (Dkt. #21).
Where objectinos to a magistrate judge's report are filed, the district court reviews
the recommendation de novo pursuant to Federal Rule of Civil Procedure 72. See also 28 U.S.C §
636(b) (1) (“A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings and recommendations to which objection is made.”). During
a de novo review a court examines the entire record and makes an independent assessment of the
law. The court should not conduct a de novo review when the objections are frivolous, conclusive,
or too general.

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See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987).
In his objection, Mr. Lawler repeats his argument that his guilty plea was not voluntary
because he was not informed that he could present a constitutional challenge to the statutory
punishment for aggravated assault. Mr. Lawler again urges this Court to find that his trial counsel
was constitutionally ineffective because counsel failed to advise him that he could challenge the facial
constitutionality of the statutory punishment scheme for aggravated assault–family violence. Mr.
Lawler contends that the First Degree Felony offense of aggravated assault–family violence, with
which he was charged, carries a stiffer punishment than a homicide charge that is subsequently
mitigated during the punishment phase by evidence of sudden passion. Compare Tex. Penal Code Ann.
§ 22.02 (b) (1)(Vernon 2011) to Tex. Penal Code Ann. § 19,02 (d) (Vernon 2011). Mr. Lawler asserts
that trial counsel had a duty to explain to him that the first degree punishment range applicable to this
case was greater than that which would have applied if he had killed his victim. His claim is based upon
the argument that it is unconstitutional for the mitigated punishment range in a homicide case to be less
than for an aggravated assault that involves the use of a deadly weapon in causing a serious bodily
injury against a family member as described by the Penal Code.
In support of his allegation in his state writ, Mr. Lawler, through counsel Randy Schaffer,
submitted an affidavit from his trial attorney, Jeff Haas, stating that:
Aggravated assault ordinarily is a second degree felony. However, it is a first degree
felony if the actor uses a deadly weapon and causes serious bodily injury to a person
with whom he is in a household or dating relationship. Thus, the maximum punishment
for causing serious bodily injury to a girlfriend with a deadly weapon (life) is
substantially greater than the maximum punishment for killing her under the immediate
influence of sudden passion arising from an adequate cause (20 years). I did not discuss
with Lawler that he could file a motion contending that the statutory punishment
scheme for aggravated assault—family violence is facially unconstitutional because it
subjects persons to greater punishment for causing serious bodily injury to a spouse or
girlfriend with a deadly weapon than for killing her in the heat of passion.

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SHCR-01 (“Writ Received”), at 52-53 (Affidavit of Jeff Haas).
This claim, that it is unconstitutional for the mitigated punishment range in a homicide case to
be less than for an aggravated assault that involves the use of a deadly weapon in causing a serious
bodily injury against a family member as described by the Penal Code, is not supported by Texas
jurisprudence. Mr. Lawler fails to cite or discuss Texas law or the specific Texas statutes that he has
attacked in his federal petition and objections. These cases do not stand for his proposition that the
sentencing ranges for Penal Code § 22.02 (b) (1) and Penal Code § 19.02 (d) are unconstitutional
because the Texas Legislature decided that the sentence for a homicide conviction may be mitigated
by proof of a defendant’s sudden passion.
The Court of Criminal Appeals held that a defendant may not raise for the first time on appeal
a facial challenge to the constitutionality of a statute. See Karenev v. State, 261 S.W.3d 428, 434 (Tex.
Crim. App. 2009)(a facial challenge to the constitutionality of statute falls within the category of rights
that can be forfeited). In so holding, the Court explained that statutes are presumed to be constitutional
until it is determined otherwise and “[t]he State and the trial court should not be required to anticipate
that a statute may later be held to be unconstitutional.” Id. When the constitutionality of a statute is at
issue, we presume the statute is valid and that the legislature did not act unreasonably or arbitrarily in
enacting the statute. Weyandt v. State, 35 S.W.3d 144, 155 (Tex. App.–Houston [14th Dist.] 2000, no
pet.). The burden rests on the moving party to establish its unconstitutionality. Id. Courts will uphold
the statute if a reasonable construction of it can be determined which will render it constitutional and
carry out the legislative intent. Weyandt, 35 S.W.3d at 155.
Further, case law has long provided that punishment which falls within the limits prescribed
by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481,486 (Tex.

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Crim. App. 1983); Jordan v. State, 495 S.W,2d 949, 952 (Tex. Crim. App. 1973). Texas courts
consistently deny claims questioning the constitutional validity of statutorily sanctioned punishment.
See, e.g., Harris v. State, 656 S.W.2d 481,486 (Tex. Crim. App. 1983); Rodriguez v. State, 614 S.W,2d
448,450 (Tex. Crim. App. 1981); Hypke v. State, 720 S.W,2d 158, 160 (Tex. App. – Houston [14th
Dist] 1986, pet. ref’d).
Hypke reaffirms the reasoning in Rummel v. Estelle, 445 U.S. 263, 272 (1980) that Texas courts
must defer to the Legislature in determining appropriate sentencing for various crimes. Hypke, 720
S.W.2d at 160. In Rummel, the U.S. Supreme Court noted that it is extremely rare for petitioners to
have a cruel and unusual punishment argument sustained in any context outside that of capital
punishment because of the great deference allowed state legislatures in determining sentencing.
Rummel, 445 U.S. at 272.
The Supreme Court again explicitly reaffirmed this perspective in Solem v. Helm, 463 U.S. 277
(1983), where it stated that:
In view of the substantial deference that must be accorded legislatures
and sentencing courts, a reviewing court rarely will be required to
engage in extended analysis to determine that a sentence is not
constitutionally disproportionate.
Id. at 290 n.16.
The Texas Legislature has set the punishment for aggravated assault against a family member
which involves both the use of a deadly weapon and serious bodily injury at between five and ninetynine years or life in prison and fine not to exceed $ 10,000. Tex. Penal Code Ann. § 22.02(b) (1)
(Vernon2011). Because Mr. Lawler’s fifty-five year sentence was within the statutory provision for
the offense that he pled guilty to committing, that punishment does not offend either the Texas or the
United States Constitution’s prohibition against cruel and unusual punishment. See Combs v. State, 652
S.W.2d 804, 806 (Tex.App.–Houston [1st Dist.] 1983, no pet).

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Trial counsel is not required to make frivolous objections, and is not acting ineffectively when
he does not do so. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998); McCoy v. Lynaugh, 874
F.2d 954, 963 (5th Cir. 1989); see also Edmond v. State, 116 S.W.:3d 110, 115 (Tex. App. – Houston
[14th Dist,] 2002, pet ref’d) (trial counsel is not ineffective for failing to make a frivolous objection).
Mr. Lawler presented nothing to support that counsel was deficient, and as such, this claim fails. Ross
v. Estelle, supra.
Further, the state habeas court considered and explicitly rejected this ineffective assistance of
counsel claim. See SHCR-01 (“Writ Received”), at 82-86 (Findings of Fact and Conclusions of Law).
This Court must defer to the state court determinations and deny habeas relief. The Honorable Jack
Skeen, Jr. presided over Mr. Lawler’s guilty plea and punishment hearings, and the state habeas
proceeding. SHCR-01 (“Writ Received”), at “Clerk’s Summary Sheet”; at 57-58 (Judgment); 82-86
(Findings and Conclusions). Judge Skeen’s findings are therefore entitled to deference and a
presumption of correctness to implicit finding against the defendant’s credibility See 28 U.S.C. §
2254(e)(1); Marshall v. Lonberger, 459 U.S. at 433 (applying that finding was necessarily part of the
court’s rejection of the defendant’s claim); Valdez v. Cockrell, 274 F.3d at 948 n.11 (presumption of
correctness applies to both explicit and implicit findings necessary to support a state court’s
conclusions of mixed law and fact); Self v. Collins, 973 F.2d 1198, 1214 (5th Cir. 1992) (same).
Judge Skeen made credibility choices in favor of the State, and its express factual findings and
credibility choices, as well as the implicit findings that flow from the trial court’s credibility choices,
are afforded a presumption of correctness. The Court of Criminal Appeals subsequently adopted the
trial court’s findings. SHCR-01, at “Action Taken” sheet. Given the extensive findings and conclusions
for this claim, Mr. Lawler cannot show that the state habeas courts’ ultimate decision to deny relief is
objectively unreasonable. Richter, 131 S. Ct. at 786. “This deference requires that a federal habeas

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court more than simply disagree with the state court before rejecting its factual determinations. Instead,
it must conclude that the state court’s findings lacked even ‘fair [] support’ in the record.” Marshall
v. Lonberger, 459 U.S. at 432.
Mr. Lawler failed to meet his burden of proof under the AEDPA. The Court of Criminal
Appeal’s denial of these claims was an adjudication on the merits. See Singleton v. Johnson, 178 F.3d
381, 384 (5th Cir. 1999); Green v. Johnson, 116 F.3d at 1121; Ex parte Torres, 943 S.W.2d at 472 (“In
our writ jurisprudence, a ‘denial’ signifies that we addressed and rejected the merits of a particular
claim while a ‘dismissal’ means that we declined to consider the claim for reasons unrelated to the
claim’s merits.”). Mr. Lawler has not met his burden of proof to demonstrate that the state habeas

court’s denial of the claims was contrary to, or an unreasonable application of Supreme Court law.
He is not entitled to relief because he cannot show “that the state court’s ruling on the claim being
presented in federal court [is] so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562
U.S. at 101-102. Mr. Lawler has failed to overcome the presumption of correctness afforded the
implicit findings of the state court, and he has failed to demonstrate that its decision to deny relief
was unreasonable.
Since the state courts’ rejection of Mr. Lawler’s claim did not result 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, Mr. Lawler is not entitled to relief. Richter, 131 S. Ct. at
786. Therefore, Mr. Lawler’s objections are overruled and the petition will be dismissed with
prejudice.

The Report of the Magistrate Judge, which contains the proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having

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made a de novo review of the objections adequately presented by the Petitioner to the Report, the
Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct.
Therefore the Court hereby adopts the findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court. It is accordingly
ORDERED that the petition for a 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 hereby DENIED.

So ORDERED and SIGNED this 2 day of August, 2017.

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Ron Clark, United States District Judge

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