Long v. Thaler, Director TDCJ-CID

Filing 21

Memorandum Opinion and Order denying the petition for a writ of habeas corpus. The court further orders that a certificate of appealability is denied. (see order for further specifics) (Ordered by Judge John McBryde on 1/13/2014) (mpw)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

, "":,':, "
IN THE UNITED STATES DISTRICT CCYORT
FOR THE NORTHERN DISTRICT OF EXAS
FORT WORTH DIVISION
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IIfrs2014

CI. ERJ{, U.S. DISTRICT COURT

LUTHER BEN LONG,

§
§

Petitioner,

§

§

v.

§

No. 4:13-CV-02S-A

§

WILLIAM STEPHENS, 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, Luther Ben Long, a state

prisoner confined in the Correctional Institutions Division of
the Texas Department of Criminal Justice (TDCJ), against William
Stephens, Director of TDCJ, respondent.

After having considered

the pleadings, state court records, and relief sought by
petitioner, the court has concluded that the petition should be
denied.
A.

FACTUAL AND PROCEDURAL HISTORY

In 2007 petitioner was convicted of two game room robberies
in Tarrant County, Texas, and, following retrial of the
punishment phase, was sentenced to 20 years' and 25 years'

confinement in Case Nos. 1040300 and 1040360D.

(02SHR at 128 1 ;

Pet. at 2; RR, vol. 5, at 40 & vol. 8, at 26-27; Clk's R. at 67 2 )
Petitioner appealed his convictions, but the Second District
Court of Appeals of Texas affirmed the trial court's judgments,
and the Texas Court of Criminal Appeals refused his petitions for
discretionary review.
809-09 & 810-09.

(02SHR at 128-43) Long v. State, PDR Nos.

Petitioner also filed two state habeas

applications relevant to this federal petition: one was denied by
the Texas Court of Criminal Appeals without written order on the
findings of the trial court, and the other was denied without
written order.

(02SHR at cover, 2; 04SHR at cover, 2 3 )

The state appellate court summarized the facts of the case
as follows:
On September 30, 2006, appellant walked into the
All New Game Room in Arlington, Texas, hog-tied an
employee, and stole all the money from the cash box.
On October 9, he used a black .357 revolver to take
$1,100 in small bills from the Mom's Triple 7 Game

1"02SHR" refers to the state court record in petitioner's
state habeas application no. WR-77,715-02; "04SHR" refers to the
state court record in petitioner's state habeas application no.
WR-77,715-04.
2"Clk's R." refers to the state court clerk's record in
Trial Court Cause No. 1040360D.
3 Pet itioner referenced only Case No. 1040300D in both state
applications.

2

Room, also in Arlington.
(02SHR at 128-29)
B.

ISSUES

In four grounds, petitioner raises the following claims:
(1)

The evidence Usuggesting" a firearm in the
aggravated robbery case was legally insufficient
to establish it as a deadly weapon;

(2)

He was denied effective assistance of trial
counsel;

(3)

The state failed to disclose favorable material
evidence in violation of Brady; and

(4)

He was denied effective assistance of counsel on
appeal.

(Pet. at 7-8)
C.

RULE 5 STATEMENT

Respondent believes petitioner has sufficiently exhausted
his state court remedies as to the claims presented and that the
petition is neither barred by limitations nor successive.
(Resp't Ans. at 4)

The court however finds one or more of

petitioner's grounds unexhausted and procedurally barred, see

infra.
D.

DISCUSSION

Legal Standard for Granting Habeas Corpus Relief

Under 28 U.S.C.

§

2254(d), a writ of habeas corpus on behalf

3

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.

The Act further requires that federal courts give great
deference to a state court's factual findings.
485.

Hill, 210 F.3d at

Section 2254(e) (1) provides that a determination of a

4

factual issue made by a state court shall be presumed to be
correct.

The applicant has the burden of rebutting the

presumption of correctness by clear and convincing evidence.
U.S.C.

§

2254(e) (1).

28

Typically, 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.
Barrientes v. Johnson,
parte Torres,

221 F.3d 741, 779-80 (5 th Cir. 2000) i Ex

943 S.W.2d 469, 472 (Tex. Crim. App. 1997).

In this case, the state habeas court entered express
findings of fact as to one or more of petitioner's claims, which
he has failed to rebut with clear and convincing evidence, and
the Texas Court of Criminal Appeals adopted those findings and
denied habeas relief without written order.

Under these

circumstances, a federal court must defer to the state habeas
court's factual findings and may assume the Texas Court of
Criminal Appeals 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

Cockrell, 315 F.3d 491, 493 n.3

(1963)4; Catalan v.

(5 th Cir. 2002) i Valdez v.

4The standards of Townsend v. Sain have been incorporated
into 28 U.S.C. § 2254(d).
Harris v. Oliver, 645 F.3d 327, 330
n.2 (5~ Cir. 1981).

5

Cockrell, 274 F.3d 941, 948 n.11 (5 th Cir. 2001); Goodwin v.
Johnson, 132 F.3d 162, 183

(1)

(5 th Cir. 1997).

Sufficiency of the Evidence

Under his first ground, petitioner claims the evidence
"suggesting" a firearm in the aggravated robbery was legally
insufficient to establish it as a deadly weapon.

(Pet. at 7;

Pet'r Mem. at 1-8)
A criminal defendant has a federal due process right to be
convicted only upon evidence that is sufficient to prove beyond a
reasonable doubt the existence of every element of the offense.
FOY v. Donnelly, 959 F.2d 1307, 1313 (5 th Cir. 1992).

Federal

courts have extremely limited habeas review of claims based on
the sufficiency of the evidence.

The standard for reviewing such

claims is supplied by Jackson v. Virginia, 443 U.S. 307 (1979).
Under this standard, the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.

Id.

at 319.
Under Jackson, the assessment of the credibility of
witnesses is generally beyond the scope of review.
Delo, 513 U.S. 298, 330 (1995).

Schlup v.

Determining the weight and

6

credibility of the evidence is within the sole province of the
jury.

United States v. Martinez,

1992).

975 F.2d 159, 161 (5 th Cir.

Courts view any required credibility determinations in

the light most favorable to the guilty verdict.
Wise,

221 F.3d 140, 154 (5 th Cir. 2000).

United States v.

They do not second-

guess the weight or credibility given the evidence.

United

States v. Ramos-Garcia, 184 F.3d 463, 465 (5 th Cir. 1999).

Moreover, where a state appellate court has conducted a
thoughtful review of the evidence, its determination is entitled
to great deference.

Callins v. Collins, 998 F.2d 269, 276 (5 th

Cir. 1993).
Relying solely on state statutory and case law, the state
appellate court addressed the claim as follows:
In his first point, appellant claims that the
evidence is legally insufficient to prove that he used
a deadly weapon during the aggravated robbery at Mom's
Triple 7.
The use of a "deadly weapon" is an essential
element of aggravated robbery as it was charged in
appellant's indictment. A firearm is a deadly weapon
per se.
Testimony using any of the terms "gun,"
"pistol," or "revolver" is sufficient to authorize a
jury to find that a deadly weapon was used.
Here, the evidence showed that Joseph Sanchez
reported to police that appellant had used a .357 held
down by his side to conduct a robbery at Mom's Triple
7. Officers searched appellant's home, and although

7

they did not recover a weapon, they found .38 long
revolver ammunition and a holster, both of which would
fit a .357 revolver. Arlington Police Detective Kyle
Dishko testified that a .357 is a firearm, a handgun, a
revolver, and a deadly weapon.
Joseph testified that
appellant used a "gun" to rob him, and at various times
during trial he referred to the gun as a "revolver,"
"black revolver," "large black handgun," and a "large
black pistol." We hold this evidence is legally
sufficient to show that appellant used a deadly weapon
and overrule appellant's first point.
(02SHR at 129-30)

(footnotes and citations omitted)

The state court's decision is not contrary to Jackson.
Clearly, the jury believed the testimony of Joseph Sanchez that
petitioner displayed a gun during the robbery of Mom's Triple 7.
Inconsistencies in the officers' testimony relevant to the matter
do not establish the use of perjured testimony but merely
establish a credibility question for the jury.

Loftis v.

Collins, 3 F.3d 437, 1993 WL 347000, at *2 (5 th Cir. Aug. 12,
1993)

i

Koch v. Puckett, 907 F.2d 524, 531 (5 th Cir. 1990).

Such

inconsistencies are not "conclusive proof" that one version of
events must be credited over another, and do not overcome our
deferential standard of review of credibility determinations.
United States v. Valentine, 401 F.3d 609, 614

(2) and (4)

(5 th Cir. 2005).

Ineffective Assistance of Counsel

Under his second and fourth grounds, petitioner claims he
received ineffective assistance of trial and appellate counsel.

8

Petitioner was represented by Robert Ford at trial, Roderick
White on retrial of the sentencing phase, and Leigh Davis on
appeal.
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial and on a first appeal as
of right.

u.s. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S.

387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688
(1984); Anders v. California, 386 U.S. 738, 744 (1967).

An

ineffective assistance claim is governed by the familiar standard
set forth in Strickland v. Washington.

466 U.S. at 668.

See

also Styron v. Johnson, 262 F.3d 438, 450 (5 th Cir. 2001)
(applying the Strickland standard to ineffective assistance
claims against appellate counsel).

To establish ineffective

assistance of counsel an applicant 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.

Strickland, 466

U.S. 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

9

deferential and every effort must be made to eliminate the

Id. at 689.

distorting effects of hindsight.

Where, as here, a

applicant'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.

Bell v. Cone, 535 U.S. 685,

698-99 (2002); Santellan v. Dretke, 271 F.3d 190, 198 (5 th Cir.
2001) .
Trial Counsel
Petitioner claims Ford was ineffective by (1) failing to
adequately investigate and present mitigating evidence of his
long-term drug addiction,
with perjured testimony,

(2) failing to impeach Detective Dishko
(3) failing to present a "defense on

best evidence" by calling his mother to testify that the gun
holster and ammunition were packed in a box in the spare bedroom,
the gun was not in petitioner's possession, and his father
possessed a gun that was pawned prior to the offenses, and (4) by
representing him under an actual conflict of interest.

(Pet. at

7; Pet'r Mem. at 9-24)
Ford, responded to petitioner's allegations via affidavit,
in relevant part, as follows:

10

There
present at
legitimate
present to

was not a viable statutory defense to
trial. Mr. Long never offered any
defense to me, based on verifiable facts,
the jury.

to

Joe Sanchez, a victim in one of the cases,
testified that.
. Mr. Long was holding a handgun at
the time of the offense.
Douglas Morrow (victim) and Joe Sanchez (victim)
both identified Mr. Long, in court, as the person who
committed the offenses.
Mr. Long provides no competent evidence to support
his position that perjured testimony was used in
obtaining his convictions. Mr. Long provides no
competent evidence that the police officers involved in
the investigation of the offenses fabricated testimony
or reports.
To the contrary, Mr. Long identified
himself on the video pictures obtained from the game
room.

Mr. Long is not a credible person. His
allegations are baseless. Mr. Long has failed to
present any competent evidence to back up any of his
claims.
The record in this case demonstrates that I
litigated all issues vigorously and obtained rulings on
those issues.
In addition, the record reflects that I
preserved issues for appeal.

(02SHR at 66-67)

(record citations omitted)

Based on counsel's affidavit and supporting documentary
evidence, the state habeas court, entered the following relevant
findings of fact:
11

5.

Hon. Ford spent over forty-one hours preparing for
this and the companion case.

6.

Hon. Ford was appointed an investigator who
conducted nine hours of investigation in this
case.

7.

Applicant presents no evidence as what counsel
would have discovered had he conducted additional
investigation into this case.

8.

There is no evidence that Hon. Ford failed to
adequately prepare for trial.

14.

Applicant identified himself on the video pictures
obtained from the game room.

15.

Applicant presents no evidence that a viable
defense existed in this case.

16.

Hon. Ford could not find a viable statutory
defense.

17.

Applicant never advised Hon. Ford of any
legitimate defense.

18.

Hon. Ford's affidavit is credible and supported by
the record.

19.

There is no evidence to support Applicant's claim
that he received ineffective assistance of
counsel.

(02SHR at 101-02)

(record citations omitted)

Based on its findings, and applying the Strickland standard,
the court entered the following relevant legal conclusions and
recommended denial of habeas relief:

12

7.

Applicant has failed to prove that counsel did not
have a firm command of the facts.

9.

Applicant has failed to prove that counsel did not
adequately prepare for trial.

12.

Applicant has failed to prove that counsel did not
properly object to the introduction of
inadmissible and perjured testimony.

13.

Applicant has failed to prove that counsel failed
to properly present a viable, cogent, and adequate
defense.

14.

Applicant has failed to prove that his attorney's
representation fell below an objective standard of
reasonableness.

15.

A party fails to carry his burden to prove
ineffective assistance of counsel where the
probability of a different result absent the
alleged deficient conduct sufficient to undermine
confidence in the outcome is not established.

16.

Applicant has failed to show that there is a
reasonable probability that the result of the
trial proceedings would have been different had
counsel investigated the case more.

17.

Applicant has failed to show that there is a
reasonable probability that the result of the
trial proceedings would have been different had
counsel researched the case more.

19.

Applicant has failed to show that there is a
reasonable probability that the result of the
trial proceedings would have been different had

13

counsel presented a different defense.
20.

Applicant has failed to show that there is a
reasonable probability that he would not have been
found guilty at trial had counsel done anything
differently.

21.

Applicant has failed to show that there is a
reasonable probability that, but for the alleged
acts of misconduct, the result of the trial
proceedings would have been different.

22.

Applicant received effective assistance of
counsel.

(02SHR at 105-06)

(citations omitted)

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 the standards set forth in
Strickland based on the evidence presented in state court.

U.S.C.

§

2254(d).

28

Applicant's claims are largely conclusory or

speculative with no legal or evidentiary basis, contradicted by
the record,5 or involve strategic decisions by counsel, which are
either insufficient to raise a constitutional issue and/or
outside this court's preview on federal habeas review.

See

Strickland, 460 U.S. at 689 (holding strategic decisions by

counsel are virtually unchallengeable and generally do not

5Evidence

of petitioner's long-term drug addiction was
presented by Roderick White during retrial of the punishment
phase.
(RR, vol. 7, at 101-11)
14

provide a basis for post-conviction relief on the grounds of
ineffective assistance of counsel) i Woodfox v. Cain, 609 F.3d
774, 808

(5~

Cir. 2010)

(providing "[c]laims of uncalled

witnesses are not favored on federal habeas review because the
presentation of witnesses is generally a matter of trial strategy
and speculation about what witnesses would have said on the stand
is too uncertain") i Green v. Johnson, 160 F.3d 1029, 1042 (5 th
Cir. 1998)

(holding conclusory arguments are insufficient to

support claim of ineffective assistance) i Koch, 907 F.2d at 530
(concluding that "counsel is not required to make futile motions
or objections) .
Overall, Ford devised a defense, filed pretrial motions and
participated in a pretrial hearing, conducted voir dire, made
meritorious objections and motions during trial, cross-examined
state witnesses, and gave closing argument.

A petitioner is

required to demonstrate that counsel's performance, in light of
the entire proceeding, was so inadequate as to render his trial
unfair.
1981).

Washington v. Watkins,

655 F.2d 1346, 1355 (5 th Cir.

Having reviewed the entirety of the record, counsel's

performance was not outside the wide range of professionally
competent assistance.

Moreover, even if petitioner could

demonstrate deficient performance, given the overwhelming
15

evidence of his guilt, it is unlikely that, but for counsel's
acts or omissions, he would have been acquitted of the charges.
United States v. Stewart, 207 F.3d 750, 751 (5 th Cir. 2000).

Although petitioner and counsel disagreed about counsel's
approach to the defense, the Sixth Amendment provides no right to
counsel blindly following a defendant's instructions.
Blackburn, 755 F.2d 1174, 1178

McQueen v.

(5 th Cir. 1985).

Appellate Counsel

Petitioner claims appellate counsel, Leigh Davis, was
ineffective by failing to raise an issue on appeal attacking the
admissibility of the three photographic lineups shown to the
three victims.

(Pet. at 8; Pet'r Mem. at 27-28)

Specifically,

petitioner complains that in the photographic line-ups, his
complexion is darker and/or his "skin tone" or the lighting is
darker, which he asserts was impermissibly suggestive.
3, at 36-38, 42, 58 & vol. 9, Def't Exs. 1-3)

(RR, vol.

Following a

hearing, the trial court found that the photographic line-ups
were not impermissibly suggestive and were admissible.

(RR, vol.

3, at 62)
Petitioner raised this issue in his amended state habeas
applications, but the issue was not specifically addressed by the
state court.

(02SHR at 41-42)

Nevertheless, "[t]he Due Process
16

Clause protects against the use of evidence obtained from
impermissibly suggestive identification procedures."
States v. Guidry, 406 F.3d 314, 319 (5 th Cir. 2005).

united

However, a

conviction will be set aside only "if the photographic
identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of misidentification."
Simmons v. United States, 390

u.s.

377, 384 (1968).

Thus, a

two-step process governs the admissibility of identification
evidence:

First, a court must determine whether the pretrial

identification was impermissibly suggestive.
409 U.S. 188, 198 (1972).
determine whether,

Neil v. Biggers,

If it was, then second, a court must

"under the totality of the circumstances, the

suggestiveness leads to a substantial likelihood of irreparable
misidentification."

Id.

A review of the copies of the six photographs from the lineups in this case supports Detective Dishko's testimony that all
six men were white males, approximately 40 to 50 years of age,
with the same or similar description and characteristics,
including some sort of facial hair and some form of receding
hairline and baldness.
9, Defendant's Exs. 1-3)

(RR, vol. 3, at 15-27, 42, 44-45 & vol.
The detective's testimony also reflects

that the photographic line-ups were shown to the victims within
17

days of the offenses and that while conducting the photographic
line-ups all six photographs were presented to the victims
individually without any suggestion that petitioner was the
suspect.

Additionally, all three victims identified petitioner

as the person who robbed them-Morrow indicated he was 95 percent
sure and Francisco Sanchez indicated he was 100 percent sure.
(RR, vol. 3, at 19, 23)
Petitioner has not established that either the photographic
line-up or the identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
misidentification.

Simmons, 390 U.S. at 384; Livingston v.

Johnson, 107 F.3d 297, 309 (5 th Cir. 1997).

The trial court's

determination, that there was no basis for suppression of the
photographic lineups in which defendant was identified was not
contrary to Supreme Court precedent on the issue.

Because

petitioner could not have prevailed on the issue on appeal, it
follows that appellate counsel was not ineffective for failing to
raise the claim.

Williams v. Collins, 16 F.3d 626, 635 (5 th Cir.

1994) .
(3)

Brady Violation

Lastly, petitioner claims the state withheld material,
exculpatory evidence in violation of Brady v. Maryland, 373 U.S.

18

83

(1963).

According to petitioner, his mother gave a Cash

America Pawn Ticket to Detective Dishko proving that his father
once owned a weapon and that the weapon was pawned prior to the
alleged robberies. 6

(Pet. at 7; Pet'r Mem. at 25-26)

He urges

this evidence "would have placed the state's best evidence-the
gun holster and ammunition-in a different light."
26)

(Pet'r Mem. at

In support of his claim, petitioner produced the affidavit of

his mother statingAfter the arrest of my son, a Detective Kyle
Dishko presented me with a consent to search form for
my house and told me that if I didn't sign the form, I
would end up in jail with my son.
I gave Detective Dishko a pawn ticket from Cash
America Pawn located on South Cooper Street, under the
name of Crystal Delisle. This pawn ticket was for a
handgun that had belonged to my late husband Joeseph
[sic] M. McElvain.
During the search of my house, Detective Dishko
discovered a box in the spare bedroom that contained a
gun holster and ammunition.
These belonged to my late
husband who owned a firearm all of his adult life.
Upon discovering the box, which contained the gun
holster and ammunition, Detective Dishko moved the box
into the room where my son was living.
I then witnessed Detective Dishko place the gun
holster in the hallway and take a picture of it. At

Pet itioner was 50 years of age at the time of trial, and
his father died when he was 12 years old.
(RR, vol. 7, at 106,
109 )
6

19

this I immediately told him to "leave my house and
never return."
During my son's trial, his attorney, Robert Ford
called me and ask[ed] if I could bring up another
change of clothing. During my conversation with Mr.
Ford, he asked me about the gun and I told him that the
gun was at Cash America Pawn on Cooper Street and that
I had given the pawn ticket to Detective Kyle Dishko.
Mr. Ford told me he would have the sheriff pick me up
and bring me to the courthouse to testify. No one
showed up to pick me up for trial.
(02SHR at 46-47)
Again, petitioner raised this issue in his amended state
habeas applications, but the issue was not specifically addressed
by the state court.

Nevertheless, to be entitled to habeas

relief on a Brady claim, a petitioner must establish that the
state suppressed or withheld evidence, which was both favorable
and material to the defense.
280 (1999)

i

Strickler v. Green, 527 U.S. 263,

Brady v. Maryland, 373 U.S. 83, 87 (1963).

The

prosecution, however, has no obligation to produce evidence or
information that, if true, was already known to petitioner and
his mother.

(02SHR at 50)

462 (5 th Cir. 2008)
Cir. 1998).

i

Moore v. Quarterman, 534 F.3d 454,

Castillo v. Johnson, 141 F.3d 218, 223 (5 th

Furthermore, as noted by the state, the evidence

does not tend to negate the evidence implicating petitioner.
For the reasons discussed herein,

20

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
petitioner has not made a substantial showing of the denial of a
constitutional right.
SIGNED January

)s
•

2014 .

21