Levee v. Florida Department of Corrections
Filing
50
Order Adopting Findings and Recommendations and Denying Certificate of Appealability re: 45 Findings and Recommendations on Case re: 1 Petition for Writ of Habeas Corpus filed by Theodore Floyd Levee. The Petition for writ of habeas corpus is dismissed with prejudice. Magistrate Judge Jeffrey L Cureton no longer assigned to case. (Ordered by Judge Terry R Means on 1/14/2014) (wrb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
THEODORE FLOYD LEVEE,
Petitioner,
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§
§
VS.
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§
SHARI BRITTON, Chief of
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Probation and Parole Field
§
Services and Interstate Compact,§
Florida Department of
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Corrections, and
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LEIGHTON ILES, Director of
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Community Supervision and
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Corrections Department of
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Tarrant County, Texas,
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Respondents
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CIVIL ACTION NO.4:13-CV-211-Y
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
(With special instructions to the clerk of Court)
In this action brought by petitioner Theodore Floyd Levee
under 28 U.S.C. § 2254, the Court has made an independent review of
the following matters in the above-styled and numbered cause:
1.
The pleadings and record;
2.
The proposed findings, conclusions, and recommendation of
the United States magistrate judge filed on November 14,
2013; and
3.
The petitioner's written objections to the proposed
findings, conclusions, and recommendation of the United
States magistrate judge filed on January 1, 2014.1
The Court, after de novo review, concludes that the Petitioner’s objections must be overruled, and that the petitioner for
1
On January 1, 2014, petitioner Levee, who is presently serving a probated
sentence on supervision in Florida, electronically filed a 97-page document
entitled “Answer Brief of Petitioner to Respondent’s Reply to Petitioner’s Writ.”
After review and consideration, the Court will construe the document as written
objections to the magistrate judge’s November 14, 2013 report. The clerk of Court
should note this on the docket. The Court had provided Levee an extension of
time until December 31, 2013 to file written objections. Although Levee did not
timely file the document on or before December 31, because he filed it
electronically on January 1, the Court will review the written objections as if
they were timely.
writ of habeas corpus under 28 U.S.C. § 2254 must be dismissed with
prejudice as procedurally barred from this Court’s review, for the
reasons stated in the magistrate judge's findings and conclusions,
and as set forth herein.
The document considered in Levee’s favor as written objections
consists of 97 pages of materials, inclusive of
arguments,
affidavits from a divorce proceeding, and statements of persons
observant of petitioner Levee during the underlying trial proceeding in the 432nd Judicial District Court of Tarrant County, Texas.
The only pages directly responsive to the magistrate judge’s
findings that Levee’s claims are now procedurally barred from this
Court’s review are ECF scanned pages 8-9, and 60-80.
As noted by the magistrate judge, Levee failed to exhaust his
state court remedies, and would now likely be barred by application
of the abuse of the writ doctrine from any successive effort to
exhaust state court remedies. Tex. Code. Crim. Proc. Ann. Art.
11.072, § 9(a). As such, the claims are barred from consideration
under the procedural default doctrine unless petitioner Levee shows
(1) cause for the default and actual prejudice, or that this
Court’s failure to consider his claims will result in a fundamental
miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 339-40
(1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley v.
Johnson, 243 F.3d 215, 219-20 (5th Cir. 2001)(“the fundamental
miscarriage of justice exception [to the procedural default rule]
is limited to cases where the petitioner can make a persuasive
2
showing that he is actually innocent of the charges against him”).
Levee does not argue that the failure to consider his claims
will be a miscarriage of justice.
Levee does argue that he has met
the cause and prejudice standard due to attorney error, in failing
to file an intermediate appeal from the denial of his state
application for writ of habeas corpus, and for failing to notify
him of this intermediate appeal procedure. In Trevino v. Thaler,
133 S.Ct. 1911 (2013), the Supreme Court held, in a case arising
from a § 2254 proceeding after Texas state collateral proceedings,
that “a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if,
in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.” 133 S. Ct. at 1921
(citing
Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012). Most
recently, the Fifth Circuit applied Trevino as follows:
To succeed in establishing cause to excuse the procedural
default of his ineffective assistance of trial counsel
claims, [petitioner] must show that (1) his underlying
claims of ineffective assistance of counsel are “substantial,” meaning that he must demonstrate that the claims
have some merit, and (2) his initial state habeas counsel
was ineffective in failing to present those claims in his
first state habeas application.
Pryor v. Stephens,
F. App’x
, 2013 WL 3830160 at *8 (5th Cir.
July 25, 2013)(internal citations and punctuation marks omitted).
Applying this recent law to Levee’s claims and procedural history,
even if he relied upon counsel in failing to perfect an intermediate appeal of the denial of his state writ application, he has not
shown that his underlying claims of ineffective assistance of
counsel have some merit.
In this regard, the Court concludes that
none of Levee’s ineffective assistance claims have arguable merit
3
for the reasons stated in the respondent’s August 23, 2013 answer
at pages 11-15.
Furthermore, a petitioner must also show actual prejudice.
Hernandez v. Stephens,
Cir. Aug. 2, 2013).
, 2013 WL 3957796 at *9 (5th
F. App’x
In order to show actual prejudice, a peti-
tioner “must establish not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his
actual disadvantage, infecting his entire trial with error of
constitutional dimensions.” Moore v. Quarterman, 534 F.3d 454, 463
(5th Cir. 2009)(citations omitted)(emphasis in original). Again, for
the reasons enunciated in the respondent’s August 23, 2013 answer
at pages 9-29, the Court concludes that Levee has not shown that
the alleged claims/errors made the basis of this petition worked to
his actual disadvantage by infecting his entire trial with error of
constitutional dimension.
In
sum,
The
Court
concludes
that
Levee
has
not
made
a
sufficient showing to establish cause and actual prejudice to
overcome the procedural default. Levee’s objections are overruled.
Therefore, the findings, conclusions and recommendation of the
magistrate judge are ADOPTED.
Petitioner Theodore Floyd Levee’s petition for writ of habeas
corpus is DISMISSED with prejudice.
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal
may not proceed unless a certificate of appealability (COA) is
4
issued under 28 U.S.C. § 2253.2 Rule 11 of the Rules Governing
Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.”3 The COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”4 A petitioner satisfies this standard by showing
“that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists of reason
could
conclude
the
issues
presented
are
adequate
to
deserve
encouragement to proceed further.”5
Upon review and consideration of the record in the abovereferenced case as to whether petitioner Levee has made a showing
that reasonable jurists would question this Court’s rulings, the
Court determines he has not and that a certificate of appealability
should not issue for the reasons stated in the November 14, 2013
Findings, Conclusions, and Recommendation of the United States
Magistrate Judge, and for the reasons stated herein.6
2
See Fed. R. App. P. 22(b).
3
RULES GOVERNING SECTION 2254 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE
11(a) (December 1, 2009).
4
28 U.S.C.A. § 2253(c)(2)(West 2006).
5
Miller-El v. Cockrell, 537 U.S. 322, 326 (2003)(citing Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
6
See Fed. R. App. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006).
5
Therefore, a certificate of appealability should not issue.
SIGNED January 14, 2014.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
6
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