Luttrell v. Thaler, Director TDCJ-CID
Filing
14
Memorandum Opinion and Order....petition pursuant to 28 USC 2254 denied; further orders that a certificate of appealability is denied as petitioner has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 12/30/2011) (wrb)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRIC
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
DAVID LYNN LUTTRELL,
DEG 302011
CLERK, U.S. DISTRICT COURT
by-_--n-==-_ __
Deputy
§
§
Peti tioner,
FILED
COURT-------~=-~
§
§
v.
§
No. 4:11-CV-471-A
§
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, David Lynn Luttrell, a state
prisoner currently incarcerated in Iowa Park, Texas, against Rick
Thaler, Director of the Texas Department of Criminal Justice,
Correctional Institutions Division, respondent.
After having
considered the pleadings, state court records, and relief sought
by petitioner, the court has concluded that the petition should
be denied.
I.
Factual and Procedural History
On May 18, 2007, in Tarrant County, Texas, a jury found
petitioner guilty of second-degree felony driving while
intoxicated (DWI) , true to the repeat offender notice in the
indictment alleging a prior felony DWI conviction, and assessed
his sentence at eighteen years' imprisonment.
at 98, 100)1
(State Habeas R.
Petitioner appealed, but the Second District Court
of Appeals of Texas affirmed the trial court's judgment, and the
Texas Court of Criminal Appeals refused petitioner's petition for
discretionary review.
607-09.
(Id. at 102)
Luttrell v. State, PDR No.
Petitioner filed a state application for writ of habeas
corpus, raising the claims presented herein, which the Texas
Court of Criminal Appeals denied without written order on the
findings of the trial court.
(State Habeas R. at cover)
This
federal habeas petition followed.
The testimony at petitioner's trial reflects that in the
early morning hours of June 3, 2006, police officers set up a
road block with their marked police cars, preceded by a "flair
line," on the exit ramp at West Freeway and Rosedale in Fort
Worth because of a one-car accident.
(RR, vol. 3, at 23-24)
Officer Spawn observed petitioner cut in front of the barricade,
drive over the improved shoulder, strike the wrecked vehicle,
back up, and drive around the wrecked vehicle onto Rosedale.
(Id. at 24-33; RR, vol. 6, State's Ex. 8)
The officer pursued
I"State Habeas R." refers to the court record for
petitioner's state habeas application No. WR-7S,434-01.
2
petitioner with his horn and sirens activated for approximately
one mile before petitioner stopped.
As the officer approached
petitioner's vehicle, he smelled the odor of alcohol and asked
(Id. at 27, 34)
petitioner to exit the vehicle.
Petitioner
appeared to lean on the door frame to steady himself and, when
asked, told the officer that he had had two beers that evening.
The officer also noticed petitioner had slurred speech,
bloodshot, watery eyes, and a "swayed, staggered walk."
34-35)
(Id. at
Based on his observations, the officer asked petitioner
if he would be willing to perform a field sobriety evaluation,
but petitioner refused and informed the officer that he had back
and knee problems.
(Id. at 35-39, 47, 90)
At that point, the
officer placed petitioner under arrest for DWI.
(Id. at 40)
Officer Britt, who arrived to assist Officer Spawn,
testified that when he arrived petitioner was already under
arrest and that he observed petitioner swaying as he stood and
leaning against Officer Spawn as he walked to the police car.
(Id. at 111)
Officer Britt also testified that he "went through"
petitioner's car and that the car had a strong odor of alcoholic
beverage.
At the police station, petitioner again refused to perform
field sobriety tests and refused to provide a breath specimen.
3
(Id. 40-42)
Officer Cantu, a member of the DWI task force at the
time and a certified intoxylizer operator, testified that at the
jail, petitioner had a strong odor of alcoholic beverage coming
from his breath, bloodshot, watery eyes, and slurred speech.
(Id. at 70-72, 77)
The officer also observed petitioner "veer"
to the right as petitioner walked toward him.
(Id. at 78)
Petitioner stipulated that he had been previously convicted
of DWI on March 22, 1995, and felony DWI on September 24, 2004.
(Id. at 67-68)
During the punishment phase, the defense called three
character witnesses, including petitioner's live-in girlfriend,
Connie Levitt.
(RR, vol. 5, 4-28)
II.
Issues
In three grounds, petitioner claims he received ineffective
assistance of trial counsel.
III.
(Pet. at 6-10; Pet'r Mem. at 2)
Rule 5 Statement
Respondent believes that petitioner has sufficiently
exhausted his state court remedies as required by 28 U.S.C.
§
2254(b) (1) and that the petition it neither barred by limitations
or subject to the successive-petition bar.
(d).
(Resp't Ans. at 4-5)
4
28 U.S.C.
§
2244(b),
IV.
A.
Discussion
Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C.
§
2254(d), a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless he
shows that the prior adjudication:
(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law, or (2) resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court.
2254(d).
28 U.S.C.
§
A decision is contrary to clearly established federal
law if the state court arrives at a conclusion opposite to that
reached by the Supreme Court of the United States on a question
of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)
Johnson, 210 F.3d 481, 485 (5 th Cir. 2000).
i
see also Hill v.
A state court
decision will be an unreasonable application of clearly
established federal law if it correctly identifies the applicable
rule but applies it unreasonably to the facts of the case.
Williams, 529 U.S. at 407-08.
5
Further, federal courts give great deference to a state
court's factual findings.
210 F.3d at 485.
Hill,
Section
2254(e) (1) provides that a determination of a factual issue made
by a state court shall be presumed to be correct.
2254(e) (1).
28 U.S.C.
§
The petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
U.S.C.
§
2254(e) (1).
28
When the Texas Court of Criminal Appeals
denies relief in a state habeas corpus application without
written order, it is an adjudication on the merits, which is
entitled to this presumption.
See Singleton v. Johnson, 178 F.3d
381, 384 (5 th Cir. 1999); Ex parte Torres,
(Tex. Crim. App. 1997).
943 S.W.2d 469, 472
Under these circumstances, a federal
court may assume the state court applied correct standards of
federal law to the facts, unless there is evidence that an
incorrect standard was applied.
Townsend v. Sain, 372 U.S. 293,
314 (1963)2; Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5 th Cir.
2002) .
B.
Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the
2The standards of Townsend v. Sain have been incorporated
into 28 U.S.C. § 2254(d).
Harris v. Oliver, 645 F.2d 327, 330
n.2 (5~ Cir. 1981).
6
effective assistance of counsel at trial.
u.s.
CONST. amend. VI,
XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984).
An
ineffective assistance claim is governed by the familiar standard
set forth in Strickland v. Washington.
466 U.S. at 668.
To
establish ineffective assistance of counsel a petitioner must
show (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that but for counsel's
deficient performance the result of the proceeding would have
been different.
Id. at 688.
A court must indulge a strong presumption that counsel's
conduct fell within the wide range of reasonable professional
assistance or sound trial strategy.
Id. at 668, 688-89.
Judicial scrutiny of counsel's performance must be highly
deferential and every effort must be made to eliminate the
distorting effects of hindsight.
Id. at 689.
Where a
petitioner's ineffective assistance claims have been reviewed on
their merits and denied by the state courts, federal habeas
relief will be granted only if the state courts' decision was
contrary to or involved an unreasonable application of the
standard set forth in Strickland.
See Bell v. Cone, 535 U.S.
685, 698-99 (2002); Santellan v. Dretke, 271 F.3d 190, 198 (5 th
Cir. 2001).
7
Petitioner first claims he rejected a plea bargain offer of
two years in prison with no deadly weapon finding based on
counsel's erroneous advice that the state could not prove his car
was used as a deadly weapon where he struck an unoccupied vehicle
and police officers were in the immediate area.
(Pet. at 6)
Second, petitioner claims counsel was ineffective during the
guilt/innocence phase by failing to file a motion in limine
and/or object to the prosecutor's argument outside the record
that the present offense was his sixth DWI.
Third, petitioner claims counsel was ineffective during the
punishment phase by failing to object to the prosecutor's
"hearsay assertions" while questioning Connie Levitt regarding
details of one of petitioner's prior DWls, the prosecutor's use
of those assertions as fact during closing argument, and the
prosecutor's comment during closing argument that petitioner was
arrested for another DWI, after committing the instant offense,
while on bond.
(Pet. at 6-9)
Petitioner was represented at trial by Abe Factor and Tracie
E. Kenan.
(State Habeas R. at 60-64)
The state habeas court
conducted a hearing by affidavit, wherein Abe Factor responded to
petitioner's allegations, in relevant part, as follows:
I have practiced criminal law in the state of
8
Texas for 34 years.
I am a member of the Texas State
Bar, I am board certified in criminal law, and have
conducted hundreds of criminal trials and appeals over
the course of my career.
I was retained to represent David Lynn Luttrell
("Luttrell") for the trial of his felony driving while
intoxicated case before Judge Robert Gill in the 213
criminal district court. The first trial of the matter
ended with a hung jury on or about March 6, 2007. The
State reindicted Luttrell on or about April 17, 2007,
though unlike the initial indictment, the reindictment
included a deadly weapon paragraph.
Prior to trial, the State offered Luttrell a pleabargain offer of two years incarceration with no deadly
weapon finding.
I transmitted the State's offer to
Luttrell, who refused and insisted on exercising his
right to trial.
Contrary to Luttrell's current
assertion, during our discussions regarding the State's
offer, I did not tell him that his car could not be
proven by the State to be a deadly weapon. Rather, I
informed him that the facts of his case and the
controlling law rendered the deadly weapon issue to be
a close call either way.
The fact that the jury
ultimately made a deadly weapon finding in no way
changes the fact that a deadly weapon finding under the
facts and circumstances of the instant offense was less
than automatic.
Prior to retrial, we made the strategic decision
to stipulate to the jurisdictional priors in order to
preclude the State from informing the jury of
Luttrell's numerous prior driving while intoxicated
convictions.
I did not file a motion in limine prior
to trial to preclude the State from referencing those
priors, as I felt it unnecessary in that such evidence
would be inadmissible where the defendant did not
testify.
9
Regarding the prosecutor's statement regarding a
sixth DWI offense at closing, the reference was so
fleeting that I did not want to focus the jury's
attention on the prosecutor's statement. During voir
dire, I had qualified the jury on the premise that the
instant trial was not to be about the defendant's past
record. Moreover, from examining the stipulation, the
jury would be able to infer that the instant offense
was at least the defendant's fourth DWI offense, as one
of the jurisdictional priors was from the district
court.
I made the strategic decision to avoid drawing
the jury's attention to the matter, as I thought doing
so would do more harm than good, as I was fully
convinced that an instruction to disregard would be of
limited effectiveness, and through numerous years of
practice in this Court, in that I was of sound belief
that Judge Gill would not have granted a mistrial had I
so requested.
At punishment, Connie Levitt testified that she
had lived with Luttrell for approximately 18 years.
When the prosecutor questioned her regarding Luttrell's
prior DWI offenses, she demonstrated some knowledge of
the facts and circumstances pertaining to some of the
priors, including the information that she had read the
accident report from one of the offenses which included
information that Luttrell had collided with a car
occupied by children.
Though some of the questions did
assume facts not in evidence, on objection, Judge Gill
would have assuredly held that "the witness could
answer if she knows." As I was aware that the witness
already knew the details of that particular offense,
the information would have come into evidence anyway.
Ergo, my strategic decision was that an objection would
have been ineffectual and have run the risk of
alienating the jury, while calling attention to the
evidence admitted.
Pertaining to the State's questioning of Connie
Levitt which implied that Luttrell was arrested for a
10
DWI in December of 2006, the jury was fully aware that
Luttrell was arrested for DWI in 2006, as that was the
date of the instant offense.
Describing it as his
~fifth" in effect was a slight benefit; as, even if
some of the jury was aware that the cross-examination
dealt with the 2000 offense rather than the instant
2006 offense, the confusion could be the respository
[sic] of reasonable doubt and demonstrate a lack on the
part of the prosecution of a firm command of the facts.
An objection would have likely brought it to the
attention of the prosecution that the 2006 DWI arrest
was actually Luttrell's sixth offense.
(State Habeas R. at 60-62)
(citations to the record omitted)
Kenan, who was hired to assist in petitioner's retrial,
averred in his affidavit that he had no knowledge of petitioner's
claims regarding pretrial matters, but responded to the remaining
claims, in relevant part, as follows:
I gave the closing argument in the guilt/innocence
phase of Luttrell's case.
Factor made the objections
to both of the State[']s closing arguments.
I have
examined the record and it is clear that Factor
objected repeatedly in the state's closing.
Specifically, Factor objected regarding the State using
the phase ~a choice he's made before-." Then again
when the State said ~This is not his first rodeo.
He's
done this before-." The record is clear that proper
objections were made.
At punishment, Connie Levitt testified that she
had lived with Luttrell for approximately 18 years.
When the prosecutor questioned her regarding Luttrell's
prior DWI offenses, she demonstrated some knowledge of
the facts and circumstances pertaining to some of the
priors, including the information that she had read the
accident report from on[e] of the offenses which
11
included information that Luttrell had collided with a
car occupied by children. Though some of the questions
did assume facts not in evidence, on objection, Judge
Gill would have assuredly held that "the witness could
answer if she knows." As I was aware that the witness
already knew the details of that particular offense,
the information would have come into evidence anyway.
Factor's strategy was that an objection would have been
ineffectual and have run the risk of alienating the
jury, while calling attention to the evidence.
Pertaining to the failure of an objection during
the State's summation during the punishment phase,
Factor did object regarding another DWI in 2006.
That
objection was overruled by the court.
Factor objected
again when the state talked about another DWI and the
court sustained the objection.
(Id. at 63-64)
(citations to the record omitted)
The state habeas judge entered findings of fact consistent
with counsel's affidavits, in conjunction with the documentary
record, which were adopted by the Texas Court of Criminal
Appeals (State Habeas R. at 68)
Based on those findings, and
applying the Strickland standard, the court concluded petitioner
received effective assistance of trial counsel and failed to
prove that but for counsel's alleged acts or omissions, the
result of his trial would have been different.
(Id. at 67-69)
Petitioner has presented no argument or evidence in this federal
habeas action that could lead the court to conclude that the
state courts unreasonably applied Strickland based on the
12
evidence presented in state court.
28 U.S.C.
§
2254(d).
As to petitioner's claim that he rejected the plea bargain
offer based on counsel's erroneous advice, the state habeas court
presumably found counsel's affidavit credible, and petitioner's
assertions incredible, as to nature of counsel's advice regarding
the plea bargain offer and the law relevant to the facts of
petitioner's case.
Such credibility determinations are entitled
to deference, absent clear and convincing evidence to the
contrary.
28 U.S.C.
§
2254(e) (1); Galvan v. Cockrell, 293 F.3d
760, 764 (5 th Cir. 2002); Carter v. Collins, 918 F.2d 1198, 1202
(5 th Cir. 1990).
The state court found counsel did not provide
petitioner "with wrong advice about whether the State could prove
his car to be a deadly weapon."
(State Habeas R. at 68)
Petitioner's unsworn declaration does not provide clear and
convincing evidence that the state court1s finding was incorrect.
No ineffective assistance is shown.
As to petitioner's second and third claims, strategic
decisions by counsel are virtually unchallengeable and generally
do not provide a basis for habeas relief. Strickland, 460 U.S. at
691; Drew v. Collins, 964 F.2d 411, 423 (5 th Cir. 1992).
Counsel's strategic decision not to file a pretrial motion in
13
limine was not unreasonable, given petitioner did not intend to
testify at trial.
Nor was counsel's strategic decision not to object to the
state's closing argument during the guilt/innocence phase that
this was "number six" for petitioner unreasonable.
at 22)
(RR, vol. 4,
In federal habeas actions, improper jury argument by the
state does not present a claim of constitutional magnitude unless
it is so prejudicial that the petitioner's state court trial was
rendered fundamentally unfair.
To establish that a prosecutor's
remarks are so inflammatory as to prejudice the substantial
rights of a defendant, the petitioner must demonstrate either
persistent and pronounced misconduct or that the evidence was so
insubstantial that, in probability, but for the remarks no
conviction would have occurred.
Hughes v. Quarterman, 530 F.3d
336, 347 (5 th Cir. 2008); Geiger v. Cain, 540 F.3d 303, 308 (5 th
Cir. 2008).
The argument, albeit improper, was made only once,
and the evidence against petitioner was substantial.
5, at 35)
(RR, vol.
Thus, counsel's decision not to object on the basis
that he did not want to draw further attention to the comment was
reasonable and does not constitute deficient performance.
Further, counsel's strategic decision not to object during
the punishment phase to the prosecutor's "hearsay assertions,
14
II
while questioning Levitt regarding details of petitioner's prior
DWls, was not unreasonable.
(Id. at 36)
Petitioner complains
that the prosecutor asserted in her questions that petitioner
"hit another car that had passengers in it"; that "a seven-yearold child was injured as a result"; and that the accident report
stated that petitioner drove into an occupied lane of traffic and
"forced" a vehicle to hit him.
According to petitioner, Levitt
had no knowledge of these matters, and thus the assertions "were
not proven."
Petitioner also complains that the prosecutor
argued these "hearsay assertions" as fact during summation.
(Pet'r Br. in Support at 19)
claim.
The record largely contradicts this
Levitt testified that she was aware of the collision and
that children were passengers in the other car, that she had read
the accident report, and that she had visited the accident site.
(RR, vol. 5, at II, 18-20)
Furthermore, under state law,
evidence of extraneous offenses is admissible during the
punishment phase.
TEX. CODE CRIM. PROC. ANN.
art. 37.07,
§
3 (Vernon Supp. 2010) Thus, counsel was not ineffective by failing
to object to the prosecutor's line of questioning on the ground
that he believed the judge would have overruled any such
objection.
Counsel is not required to make frivolous motions or
objections. Johnson v. Cockrell, 306 F.3d 249, 255 (5 th Cir.
15
2002)
i
Koch v. Puckett, 907 F.2d 524, 527 (5 th Cir. 1990).
Finally, the record reflects counsel did object to the
prosecutor's argument that while out on bond petitioner "picked
up" another DWI.
(Id. at 36)
Having reviewed the entirety of the record, counsel's
performance was not outside the wide range of professionally
competent assistance, and petitioner has failed to show that but
for counsel's acts or omissions, he would have been acquitted of
the charges or that his sentences would have been significantly
less harsh given his long history of DWls.
United States v.
Stewart, 207 F.3d 750, 751 (5 th Cir. 2000).
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.
§
2253(c), for
the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
16
petitioner has not made a substantial showing of the denial of a
constitutional right.
SIGNED December 30,
17
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