George v. Davis, Director TDCJ-CID

Filing 34

Opinion and Order...Petitioner's claims primarily raise questions of state law; fail to present basis for federal habeas corpus relief. Petitioner's petition denied; COA denied. (Ordered by Judge Terry R Means on 3/29/2016) (wrb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
TYRONE EUGENE GEORGE,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:14-CV-851-Y

OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Tyrone Eugene
George, a state prisoner, against William Stephens, director of the
Texas Department of Criminal Justice, Correctional Institutions
Division (TDCJ), Respondent.
After having considered the pleadings and relief sought by
Petitioner, the Court has concluded that the petition should be
dismissed, in part, for failure to exhaust state remedies and, in
part, denied.
I. FACTUAL AND PROCEDURAL HISTORY
In October 2012 Petitioner was indicted in Tarrant County,
Texas, Case No. 1296783D, for unlawfully carrying a weapon on a
licensed premises, Speedway Grocery, on September 12, 2012. (Adm.
R., WR-81,511-01, 41, ECF No. 13-1.) The indictment also included
a

repeat-offender

paragraph

alleging

a

prior

1996

robbery

conviction. (Id. at 84.) On February 4, 2013, Petitioner waived his
right to a jury trial and entered an open plea of guilty to the
offense and a plea of true to the repeat-offender allegation. (Id.
at 42-47.) On May 10, 2013, following preparation of a presentence
investigation report, the trial court sentenced Petitioner to ten
years’ confinement, suspended the sentence, and placed him on five
years’ community supervision. (Id. at 48-53.) On October 18, 2013,
the state filed a petition to revoke Petitioner’s supervision on
the grounds that Petitioner violated its conditions by being
unsuccessfully

discharged

from

the

Substance

Abuse

Felony

Punishment Facility (SAFPF). (Id. at 55-56.) On January 10, 2014,
pursuant to a plea agreement, Petitioner pleaded true to the
violation,
sentenced

and
him

the
to

trial

three

court

years’

revoked

his

confinement.

supervision
(Id.

at

and

57-62.)

Petitioner filed a state habeas application, raising one or more of
the claims presented here, which was denied without written order
by the Texas Court of Criminal Appeals on the findings of the trial
court. (Admin. R., WR-81,511-01, ECF No. 13-2.) This federal habeas
petition followed.
II. ISSUES
Generally, petitioner raises the following grounds for habeas
relief:
(1) Wrongful conviction,
(2) False imprisonment,
(3) Ineffective assistance of counsel,
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(4)
(5)
(6)
(7)

Failure to indict,
False charge,
Double jeopardy, and
Due process violation.

(Pet. 6, ECF No. 1.1)
III. RULE 5 STATEMENT
Respondent admits that Petitioner has sufficiently exhausted
his state remedies as to grounds one, four, five and seven and that
the petition is neither barred by limitations nor subject to the
successive-petition bar. But Respondent contends that Petitioner’s
grounds two, three, and six are unexhausted and procedurally
barred. (Resp’t’s Answer 4, ECF No. 25.)
IV. EXHAUSTION
Applicants seeking habeas-corpus relief under § 2254 are
required to exhaust all claims in state court before requesting
federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas,
169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is
satisfied when the substance of the federal habeas claim has been
fairly presented to the highest court of the state on direct appeal
or in state post-conviction proceedings. O’Sullivan v. Boerckel,

1
This case was transferred to this Court from the Galveston division of the
Southern District of Texas. Petitioner’s grounds three through seven are found
in the pleadings filed in the Galveston division entitled “Additional Grounds
Petitioner Requests Action by this Honorable Court” and “Amended Complaint.”
(George v. Stephens, Civil Action No. 3:14-CV-327, ECF Nos. 7 & 13.) Although the
Galveston case docket indicates that these documents were forwarded to this
Court, the documents were either not received or not docketed in this cause by
the clerk of Court.

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526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v.
Estelle,

677

F.2d

427,

443

(5th

Cir.

1982).

The

exhaustion

requirement is “not satisfied if the petitioner presents new legal
theories or factual claims in his federal habeas petition.” Reed v.
Stephens, 739 F.3d 753, 780 (5th Cir. 2014) (quoting Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003)).
In Texas, the highest state court for criminal matters is the
Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d
429, 431-32 (5th Cir. 1985). Therefore, as a general rule, a Texas
prisoner

may

satisfy

the

federal

exhaustion

requirement

by

presenting both the factual and legal substance of a claim to the
Texas

Court

of

Criminal

Appeals

in

either

a

petition

for

discretionary review or a state habeas post-conviction proceeding
under article 11.07 of the Texas Code of Criminal Procedure. See
TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Depuy v. Butler,
837 F.2d 699, 702 (5th Cir. 1988).
Petitioner did not directly appeal the trial court’s judgments
in this case; thus it was necessary that he raise his claims in a
properly filed state habeas application under article 11.07 of the
Texas Code of Criminal Procedure. Having reviewed the claims raised
by Petitioner in his state habeas application, the Court agrees that
grounds two, three, and six in this federal petition do not
sufficiently correspond to any grounds raised in Petitioner’s state
application. Accordingly, grounds two, three, and six, raised for

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the first time in this federal petition, are unexhausted for
purposes § 2254(b)(1)(A).
Under the Texas abuse-of-the-writ doctrine, however, Petitioner
cannot now return to state court for purposes of exhausting the
claims. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a)-(c). The
abuse-of-the-writ doctrine represents an adequate state procedural
bar to federal habeas review. See Nobles v. Johnson, 127 F.3d 409,
423 (5th Cir. 1997). Therefore, and absent a showing of cause and
prejudice or actual innocence, Petitioner’s grounds two, three, and
six are unexhausted and procedurally barred from this Court’s
review. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
Accordingly, the discussion below applies only to grounds one, four,
five and seven.
V. DISCUSSION
A. Legal Standard for Granting Habeas-Corpus Relief
A § 2254 habeas petition is governed by the heightened standard
of review provided for by the Anti-Terrorism and Effective Death
Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of
habeas corpus should be granted only if a state court arrives at a
decision that is contrary to or an unreasonable application of
clearly established Supreme Court precedent or that is based on an
unreasonable determination of the facts in light of the record
before the state court. Harrington v. Richter, 562 U.S. 86, 100-01

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(2011); 28 U.S.C. § 2254(d)(1)–(2). This standard is difficult to
meet and barely “stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings.”
Harrington, 562 U.S. at 102.
Additionally, the statute requires that federal courts give
great deference to a state court’s factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1)
provides that a determination of a factual issue made by a state
court shall be presumed to be correct. The petitioner has the burden
of rebutting the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S.
322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000).
Typically, when the Texas Court of Criminal Appeals denies relief
in a state habeas-corpus application without written opinion, as in
this case, it is an adjudication on the merits, which is entitled
to the presumption. Singleton v. Johnson, 178 F.3d 381, 384 (5th
Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App.
1997). 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, and
infer fact findings consistent with the state court’s disposition.
Townsend v. Sain, 372 U.S. 293, 314 (1963)2; Catalan v. Cockrell,

2
The 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 (5th Cir. 1981).

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315 F.3d 491, 493 n.3 (5th Cir.2002); Valdez v. Cockrell, 274 F.3d
941, 948 n.11 (5th Cir. 2001). With these principles in mind, the
Court addresses Petitioner’s claims.
B. Petitioner’s Grounds
Although Petitioner’s grounds for relief are somewhat vague and
ambiguous, they can be construed as follows: he was wrongfully
convicted because “the charge [for which he was on probation] was
apparently dismissed”; he was never indicted on the charge for which
he is confined; the charge is false because the state claims the
holding offense “arose” on August 5, 2013, when he was in the SAFPF
facility; and he was subjected to due-process violations because he
was already incarcerated on August 5, 2013, was never arrested on
the charge, and the charge is different than the charge on which he
made bail.
The state habeas judge, who also presided over the original
plea proceedings and the revocation proceedings, adopted the state’s
proposed memorandum, findings of fact, and conclusions of law,
including the following relevant factual findings:
Offense
5.

Applicant is currently serving a sentence for the
offense of unlawful carrying of a weapon on a
licensed premises that was committed on September
12, 2012.

6.

The Indictment, Judgment, and Judgment Revoking
Community
Supervision
allege
that
Applicant
committed the offense of unlawful carrying of a
weapon on a licensed premises on September 12, 2012.

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7.

The Fort
regarding
committed
weapon on
September

Worth Police Department Incident Report
Applicant’s arrest alleges that Applicant
the offense of unlawful carrying of a
a premises licensed to sell alcohol on
12, 2012.

8.

Applicant was initially arraigned for committed
[sic] the offense of unlawful carrying of a weapon
on a premises licensed to sell alcohol on September
12, 2012.

9.

Applicant is currently serving the sentence for the
offense for which he was convicted.

10.

The charge that sent Applicant to prison is the same
charge as the one for which he was placed on
probation.

11.

Applicant was on probation, arrested, and indicted
for the offense that he is now in prison for.

12.

The charge for which Applicant
probation has not been dismissed.

13.

Applicant has been sentenced to prison for [the]
offense that he pled to and was convicted.

was

placed

on

Based on its findings, the court concluded and recommended that
Petitioner’s grounds for relief be denied. (Adm. R., WR-81,511-01,
34-37, ECF No. 13-1 (record references omitted).) The Texas Court
of Criminal Appeals, in turn, denied relief based on those findings.
Petitioner has failed to rebut the state courts’ factual
findings by clear and convincing evidence. And, deferring to those
findings, Petitioner has failed to show that the state courts’
denial of his claims is contrary to or involves an unreasonable
application of clearly established Supreme Court precedent or that
the state courts’ denial of his claims is unreasonable in light of
the

record.

The

record

itself

refutes
8

most,

if

not

all,

of

Petitioner’s grounds. Furthermore, Petitioner’s claims primarily
raise questions of state law, not federal constitutional law. Such
claims fail to present a basis for federal habeas corpus relief.
Estelle v. McGuire, 502 U.S. 62, 67 (1991).
For

the

reasons

discussed

the

Court

DENIES

Petitioner’s

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
and DENIES a certificate of appealability.
SIGNED March 29, 2016.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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