Pate v. Werner

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations of the United States Magistrate Judge. ORDERED that the application for the writ of habeas corpus is DISMISSED WITH PREJUDICE. Signed by Judge Michael H. Schneider on 6/9/2015. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
PAUL MICHAEL PATE

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v.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:14cv684

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Paul Pate, proceeding pro se, filed this application for the writ of habeas
corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. This Court ordered that
the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
Pate was convicted in a bench trial of possession of methamphetamine, receiving a sentence
of seven years in prison. In his federal habeas petition, Pate contended that the evidence was
insufficient to support a conviction, the charges were false and amounted to misstatements of law,
the arresting officer, Sgt. Shawn Murry, unlawfully searched and detained Pate, the State failed to
prove that Pate possessed the drugs or to disprove that Officer Murry had planted the drugs, Sgt.
Murry has a history of harassing Pate and could have planted the drugs, and Pate received ineffective
assistance of counsel on appeal when his appellate attorney, Austin Jackson, failed to challenge the
denial of the motion to suppress.
The magistrate judge ordered the Respondent to answer Pate’s petition and received copies
of the state court records. After review of these records and the pleadings in the case, the magistrate

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judge issued a report recommending that the petition for habeas corpus relief be denied. In response,
Pate filed two sets of objections as well as a “statement of proof of ineffective assistance of counsel.”
In his first set of objections, Pate contends that there was no physical evidence he possessed
the methamphetamine, the law requires that defendants be proven guilty “beyond the shadow of a
doubt” and the State did not meet this burden, and his claim of unlawful search and detention was
procedurally barred because his appellate counsel was ineffective and failed to raise it on direct
appeal. These objections lack merit; the evidence was sufficient, albeit circumstantial, to support
the finding of guilt and Pate cannot raise a Fourth Amendment claim in a federal habeas proceeding
where he had a full and fair opportunity to litigate this claim in state court. Stone v. Powell, 428
U.S. 465, 494, 96 S.Ct. 3037, 3053 (1976).
In his second set of objections, Pate again argues that the evidence was insufficient to support
the conviction, his conviction would have been reversed had his claim of unlawful search and
detention been raised on direct appeal, and the drugs were found in a public alleyway and no jury
could have found him guilty beyond a shadow of a doubt. These objections likewise lack merit; Pate
has offered nothing to suggest that his conviction would have been reversed on direct appeal had his
claim of unlawful search and detention been raised on direct appeal. He has also failed to show that
when viewed in the light most favorable to the verdict, no rational trier of fact could have found him
guilty beyond a reasonable doubt. See Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012).
In his “statement of proof of ineffective assistance of counsel,” Pate says that Jackson made
a number of “false statements” in his appellate brief, including stating that Sgt. Murry asked for his
driver’s license and ran a warrant check and that Pate was nervous and fumbling. However, these
statements were supported by sworn testimony in the record. Although Pate says that “all of these
false statements can be verified,” he points to nothing in the record showing that the statements were
false. In addition, Pate complains that Jackson stated the original trial sentencing was pronounced
on March 9, 2013. The record shows that the sentence was actually pronounced on April 9, 2013.
While the date given in the appellate brief was undoubtedly incorrect, Pate has failed to show that
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the mis-statement of the date of sentencing made any difference to the outcome of his appeal, nor
that it demonstrates such ineffective assistance of counsel as to justify federal habeas corpus relief.
Moreno v. Dretke, 450 F.3d 158, 168 (5th Cir. 2006). This is particularly true in light of the fact that
Pate’s claim of ineffective assistance of counsel on appeal is procedurally barred because he did not
raise it in his state habeas corpus proceeding. See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.
1995).
The Court has conducted a careful de novo review of those portions of the magistrate judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the report of the magistrate judge is correct and the Petitioner’s
objections are without merit. It is accordingly
ORDERED that the Petitioner’s objections are overruled and the report of the magistrate
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judge (ECF TXED 6:14-cv-684, 16) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled application for the writ of habeas corpus is DISMISSED
WITH PREJUDICE. It is further
ORDERED that the Petitioner Paul Pate is DENIED a certificate of appealability sua
sponte. Finally, it is
ORDERED that any and all motions which may be pending in this action are DENIED.
It is SO ORDERED.
SIGNED this 9th day of June, 2015.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE