Davis v. Director TDCJ
ORDER overruling objections and adopting the magistrate judge's 18 Report and Recommendation. Signed by Judge Ron Clark on 9/26/2017. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 9:14cv146
ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Patrick Davis, an inmate confined at the Telford Unit of the Texas Department of Criminal
Justice, Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges convictions for burglary of a habitation
and aggravated assault with a deadly weapon.
The court previously referred this matter to the Honorable Zack Hawthorn, United States
Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636. The Magistrate Judge has
submitted a Report and Recommendation of United States Magistrate Judge concerning the petition.
The Magistrate Judge recommends that petitioner’s first, second and fifth grounds for review, which
relate to petitioner’s pleas of guilty and placement on deferred adjudication probation, be dismissed
as barred by the applicable statute of limitations, and that the remaining grounds for review be
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and
Recommendation. The court must therefore conduct a de novo review of the objections in relation
to the pleadings and the applicable law.
Grounds for Review Relating to Pleas of Guilty and Placement on Deferred Adjudication
With respect to the grounds for review relating to petitioner’s pleas of guilty and placement
on deferred adjudication probation, the Magistrate Judge found that the period of limitations with
respect to these grounds for review began to run on December 20, 2008, when petitioner’s placement
of deferred adjudication probation became final, and expired one year later, on December 20, 2009.
As the current petition was filed almost five years later, review of these ground for review is barred
by the one-year statute of limitations.
In his objections, petitioner contends the period of limitations did not begin to run on
December 20, 2008, because placement on deferred adjudication probation is not a final judgment
for the purposes of 28 U.S.C. § 2244(d)(1)(A). However, the United States Court of Appeals for the
Fifth Circuit has held that an order placing a defendant on deferred adjudication probation is a
separate, final judgment for the purposes of Section 2244(d)(1)(A). Caldwell v. Dretke, 429 F.3d
521, 528-29 (5th Cir. 2005). As a result, the Magistrate Judge correctly concluded the grounds for
review relating to petitioner’s pleas of guilty and placement on deferred adjudication probation are
barred by the applicable statute of limitations.
Petitioner contends there was insufficient evidence to support the trial court’s finding that
he violated the terms of his probation. The prosecution alleged petitioner committed nine violations
of the terms of his probation. Petitioner entered a plea of true to one of the allegations. The trial
court determined petitioner had committed eight of the nine alleged violations.
The Magistrate Judge observed that pursuant to Texas law, a single violation of a condition
of probation is sufficient to warrant revocation. Petitioner was accused of operating a motor vehicle
without the consent of its owner. The Magistrate Judge found that based on the testimony of Tonya
Hall, the owner of the vehicle, a reasonable finder of fact could have concluded by a preponderance
of the evidence that petitioner operated Ms. Hall’s motor vehicle without her consent.
In his objections, petitioner states that except for the allegation he entered a plea of true to,
the allegations against him were false. He states there was insufficient evidence to support the trial
The Magistrate Judge correctly stated that as a single violation of a condition of probation
is sufficient to warrant revocation, the remaining allegations against a petitioner need not be
considered so long as there is sufficient evidence to support a finding that one of the allegations was
true. Based on the testimony of Ms. Hall as described in the Report and Recommendation, a
reasonable finder of fact could have found by a preponderance of the evidence that petitioner
operated Ms. Hall’s vehicle without her consent.
While petitioner presented evidence he had
previously purchased the vehicle from Ms. Hall, the determination of whether such evidence was
credible was for the finder of fact rather than this court. United States v. Garcia, 995 F.2d 556, 561
(5th Cir. 1993). This ground for review is therefore without merit.
Use of Perjured Testimony
Petitioner states the prosecution was aware his probation officer and Ms. Hall gave false
testimony at the revocation hearing. The Magistrate Judge concluded this ground for review was
without merit because petitioner submitted no evidence indicting the prosecution knew the testimony
was false, but nonetheless permitted it to go unchallenged.1
Petitioner objects, stating that the actions of witnesses called by the state is imputed to the
prosecution. Petitioner also presents reasons in support of his contention that the testimony of the
probation officer and Ms. Hall was false. However, he makes no attempt to show that the
prosecution knew their testimony was false. As a result, the court agrees with the Magistrate Judge’s
conclusion concerning this ground for review.
Ineffective Assistance of Counsel
Petitioner asserts two ways counsel was ineffective with respect to his revocation proceeding.
First, petitioner states counsel was ineffective for advising him to plead true to the allegation that
he did not report to his probation officer in February or March, 2009. He states that if counsel had
attempted to subpoena the entire probation record, counsel could have impeached perjured testimony
indicating petitioner did not report to his probation officer at all in February and March, 2009.
Initially, the Magistrate Judge, citing an exchange between the trial court and defense
counsel, stated petitioner actually only pled true to the allegation that he did not report to his
The prosecution violates the Due Process Clause when it permits material testimony that it knows to be
false to go unchallenged. Creel v. Johnson, 162 F.3d 385, 291 (5th Cir. 1998).
probation officer in February, 2009. He then observed that petitioner acknowledged in his testimony
that he did not report in February. The Magistrate Judge stated that as petitioner’s own testimony
established that the allegation regarding February was true, counsel could have reasonably concluded
pleading true to the allegation would have increased the credibility of the defense with the court.
Counsel’s performance therefore did not fall below an objective standard of reasonableness. In
addition, as petitioner admitted not reporting in February, his plea of true did not result in any
Petitioner states counsel should have known that a plea of true to any of the allegations would
have been sufficient to enable the court to revoke his placement on probation. He states the record
shows that he reported to his probation officer on the second Wednesday of February.3
Petitioner correctly states that a finding of true to any of the allegations would have been
sufficient to permit the court to revoke his placement on probation. However, the court would not
have been required to order revocation. The Magistrate Judge correctly stated that counsel could
have reasonably concluded he would have been in better to position to argue against revocation if
petitioner pled true to an allegation to which there was no defense. Moreover, petitioner’s statement
that the record shows he reported to his probation officer on the second Wednesday of February is
incorrect. Petitioner acknowledged during his testimony the allegation that he did not report to his
probation officer in February was true. Reporter’s Record, Vol. 2 at 115-16.
Petitioner also contends counsel’s performance at the revocation hearing was deficient
because he did not call Ms. Hall’s daughter, Ms. Ainsworth, Ms. Thompson, Ty McCarty and
Deputy Sheriff Ben Curtis to testify on his behalf. The Magistrate Judge concluded that as petitioner
had not shown any of these individuals would have been willing and available to testify at the
To establish he received ineffective assistance of counsel, a petitioner must show: (a) counsel’s
performance fell below an objective standard of reasonableness and (b) counsel’s deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under the terms of his placement on community supervision, petitioner was required to report to his
probation officer in person on the first and third Wednesday of each month. Clerk’s Record at 171.
revocation hearing, the ground for review was without merit.4
In his objections, petitioner explains why each of the individuals he identified could have
provided testimony that would have assisted his defense and states counsel should have called them
to testify. However, he makes no attempt to demonstrate that any of the individuals would have been
willing and available to testify at the hearing. In addition, as the Magistrate Judge observed,
petitioner has provided no evidence supporting his contentions as to what testimony they would have
Petitioner has therefore failed to satisfy the standard applicable to claims of
ineffectiveness based on uncalled witnesses.
Accordingly, petitioner’s objections are OVERRULED.
The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED as the opinion of the court. A final judgment shall be entered in accordance with the
recommendation of the Magistrate Judge.
In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability
concerning his petition. An appeal from a judgment denying federal habeas relief may not proceed
unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a
certificate of appealability requires the petitioner to make a substantial showing of the denial of a
federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362
F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need not demonstrate
that he would 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 should be resolved in favor of the
To establish ineffective assistance based upon counsel’ failure to call a witness, a petitioner must identify
the witness, demonstrate the witness was available to testify and would have done so, set out the contents of the
witness’s proposed testimony, and show why the testimony would have been favorable to a particular defense. Day
v. Quarterman, 566 F.3d 527, 529 (5th Cir. 2009).
petitioner, 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. 2000).
In this case, the petitioner has not shown that the issues raised by his petition are subject to
debate among jurists of reason. The factual and legal issues raised by petitioner have been
consistently resolved adversely to his position and the questions presented are not worthy of
encouragement to proceed further. As a result, a certificate of appealability shall not issue in this
So ORDERED and SIGNED this 26 day of September, 2017.
Ron Clark, United States District Judge
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