Larry v. Director, TDCJ-CID

Filing 22

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 denied. Signed by Judge Ron Clark on 2/18/2017. (bjc, )

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

ANTHONY JOSEPH LARRY, #1836955

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:16cv267

ORDER OF DISMISSAL
Petitioner Anthony Joseph Larry, an inmate confined in the Texas prison system,
proceeding pro se, brings the above-styled and numbered petition for a writ of habeas corpus
challenging his 2013 Rains County conviction for the offense of possession of a controlled
substance in an amount greater than or equal to 400 grams. The petition was referred to United
States Magistrate Judge John D. Love, who issued a Report and Recommendation (Dkt. #19)
concluding that the petition should be denied. Mr. Larry has filed objections (Dkt. #21).
Mr. Larry initially argues that he is entitled to relief because plea offers were unreasonably
rejected by counsel before trial. This issue was fully developed during the State habeas corpus
proceedings. After reviewing the record, including affidavits from counsel and the prosecutor,
the State trial court found that Mr. Larry, not his attorney, rejected the plea offer.

Supp.

SHCR1 at 89. The finding was made that Mr. Larry rejected the offers because he did not want
to go to prison. Id. The State trial court made a recommendation to deny relief on this claim,

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“Supp. SHCR” refers to the state habeas clerk’s record on remand from the Texas Court of Criminal Appeals,
followed by the page number(s).

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and the Texas Court of Criminal Appeals denied the application without written order based on
findings of the trial court without a hearing.
In his objections, Mr. Larry once again argues that counsel unreasonably rejected the plea
offers, but he has not satisfied his burden of rebutting the presumption of correctness that must be
accorded to the State court’s findings of fact with clear and convincing evidence, as required by
28 U.S.C. § 2254(e)(1). Moreover, he has not shown, as required by § 2254(d), that the State
court findings resulted 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, or
resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings. His first ground for relief lacks merit.
In his second ground for relief, Mr. Larry argues that his attorney was ineffective during
the guilt/innocence phase of the trial by failing to successfully argue the motion to suppress. In
order to succeed on a claim of ineffective assistance of counsel, a petitioner must show (1) that
counsel’s performance was deficient, and (2) that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The record
reveals that trial counsel filed and argued a motion to suppress the drug evidence and, further, reurged the motion upon the conclusion of the evidence during the guilt/innocence phase of the trial.
The State trial court found that counsel “vigorously litigated this case during the trial, urging a
motion to suppress the evidence seized as a result of an illegal stop, as well as hotly contesting the
cocaine . . . being affirmatively linked to [Mr. Larry] at all.” Supp. SHCR at 89. The State trial
court made a recommendation to deny relief based on the ineffective assistance of counsel claim,

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and the Texas Court of Criminal Appeals denied the application without written order based on
findings of the trial court without a hearing.
Magistrate Judge Love found that Mr. Larry had not satisfied his burden under §
2254(d) in order to obtain relief. In his objections, Mr. Larry asserts that counsel should have
made a better presentation of the motions. The Supreme Court observed that “it is all too easy
for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065. An attorney’s trial strategy may be reasonable, although ultimately unsuccessful.
Castillo v. Stephens, 640 F. App’x 283, 292 (5th Cir. 2016). Mr. Larry has not shown that
counsel’s performance was deficient. More importantly, he has not shown that he was prejudiced
because counsel failed to do more. Mr. Larry is not entitled to relief because he has not shown,
as required by § 2254(d), that the State court findings resulted 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, or resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceedings. Moreover, he has not satisfied his burden of overcoming the “doubly”
deferential standard that must be accorded counsel in conjunction with § 2254(d). Harrington
v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 788 (2011).
In his final ground for relief, Mr. Larry argues that his attorney was ineffective during the
punishment phase of the trial. He complains that counsel failed to call his parents and wife to
testify about his positive attributes. In his affidavit, counsel explained that the State had already

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filed a “Notice of Intent” to present extraneous offenses to the jury regarding arrests in both Texas
and Georgia. Supp. SHCR at 86. He felt that if he had called these witnesses to testify, then the
door would have been opened for the prosecution to offer the extraneous offenses. Id. After
reviewing the evidence accumulated in the case, the State trial court found that counsel’s “decision
not to call witnesses in mitigation was a sound strategy. Had he done so, the State would most
certainly would have introduced evidence through them of [Mr. Larry’s] criminal history,
including the two alleged out-of-state felonies and the then-pending drug charges committed while
on bail for this offense. By not calling the family, the jury never heard the evidence.” Supp.
SHCR at 90. The State trial court made a recommendation to deny relief based on the ineffective
assistance of counsel claim, and the Texas Court of Criminal Appeals denied the application
without written order based on findings of the trial court without a hearing.
Magistrate Judge Love found that Mr. Larry had not satisfied his burden under § 2254(d)
in order to obtain relief. In his objections, Mr. Larry once again disputes the decision not to call
his family members, but a decision not to call family members is trial strategy. The Supreme
Court has observed that “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.
Ct. at 2066. Mr. Larry has not satisfied his burden of overcoming the presumption that counsel’s
decision not to call his family members was sound trial strategy. Moreover, he has not shown, as
required by § 2254(d), that the State court findings resulted 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, or resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceedings.
Finally, he has not satisfied his burden of overcoming the “doubly” deferential standard that must
be accorded counsel in conjunction with § 2254(d). Richter, 562 U.S. at 105, 131 S. Ct. at 788.
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. Larry to the Report, the court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr. Larry’s
objections are without merit. Therefore, the court 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.

previously ruled on are DENIED.

So Ordered and Signed
Feb 18, 2017

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All motions not