Leath v. State of Texas
Filing
42
Opinion and Order. For the reasons discussed, the Court DENIES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, a certificate of appealability, and any motions not previously ruled upon. (Ordered by Senior Judge Terry R Means on 10/4/2016) (trt).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
PATRICK EUGENE LEATH,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:15-CV-056-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, Patrick Eugene
Leath, a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions Division,
Respondent.
After having considered the pleadings and relief sought by
Petitioner, the Court has concluded that the petition should be
denied.
I.
FACTUAL AND PROCEDURAL HISTORY
On December 4, 2012, in the 29th Judicial District Court, Palo
Pinto County, Texas, a jury found Petitioner guilty of aggravated
sexual assault of a child, and the trial court assessed his
punishment at 40 years’ confinement and a $2500 fine. (Adm. R.,
Clerk’s R. 79, ECF No. 23-3.) Petitioner appealed his conviction,
but the Eleventh Court of Appeals of Texas dismissed the appeal as
frivolous
and
the
Texas
Court
of
Criminal
Appeals
refused
Petitioner’s petition for discretionary review. (Id., Mem. Op. 2-3,
ECF No. 23-1.) See also Texas Judicial Branch, No. PD-0692-13, at
www.search.txcourts.gov.
Petitioner
also
filed
a
state
habeas
application challenging his conviction, which was denied without
written order by the Texas Court of Criminal Appeals. (Id., Action
Taken, ECF No. 23-19.)
This federal petition followed.
Testimony elicited at trial reflected that on or about May 13,
2012, “K.L.,” Petitioner’s 12-year-old step-daughter spent the night
with Petitioner and her mother “K.” As K.L. lay between the two in
bed, Petitioner tried to kiss K.L., touched her under her clothes,
and inserted his finger in her vagina, while her mother, who was
heavily medicated, slept. (Id., Reporter’s R., vol. 4, 10-11 & 10708.) K.L. made an outcry to her sister, “T.L.,” approximately 17
days later. (Id. at 38-39.) K.L.’s
sexual assault exam was normal.
(Id. at 105.) At trial, T.L., one of the investigating officers, and
the sexual-assault nurse examiner testified. K.L. did not testify,
and the defense called no witnesses.
II.
ISSUES
Petitioner raises six grounds alleging ineffective assistance
of trial counsel. (Pet. 6-7, ECF No. 8 & Attach. 3-5, ECF No. 8-3.)
The claims are construed as follows: counsel was ineffective by:
(1)
failing to obtain a ruling on his motion to make the
state “bring forth” K.L. as a witness at trial;
2
(2)
“writing” an affidavit in the state habeas
proceeding
stating
that
he
chose
to
waive
Petitioner’s constitutional right to confront and
cross-examine his accuser;
(3)
failing to call Petitioner’s
mother), to testify at trial;
(4)
writing a letter to the Texas Court of Criminal
Appeals
to
dismiss
Petitioner’s
state-habeas
application;
(5)
failing to conduct an adequate investigation; and
(6)
failing to strike juror number 36 for cause.
wife,
K.
(K.L.’s
(Pet. 6-7, ECF No. 8; Attach. 2, ECF No. 8-2; Attach. 3-5, ECF No.
8-3.)1
III.
RULE 5 STATEMENT
Respondent believes that Petitioner has sufficiently exhausted
his state-court remedies as to the claims raised and that the
petition is not time-barred or subject to the successive-petition
bar. (Resp’t’s Answer 5, ECF No. 32.) A closer examination of the
record, however, reveals that one or more of Petitioner’s grounds
for relief are raised for the first time in this federal petition.
See Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998)
(providing a federal court may raise procedural default sua sponte).
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,
1
The Court declines to consider any new claims and/or legal argument raised
for the first time in Petitioner’s rebuttal brief.
3
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, 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, a Texas prisoner may
typically satisfy the 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. TEX. CODE CRIM. PROC. ANN.
art. 11.07 (West 2015); Depuy v. Butler, 837 F.2d 699, 702 (5th Cir.
1988).
Petitioner
concedes
that
he
raises
his
third
and
fourth
grounds, enumerated above, for the first time in this federal
petition but explains that the claims were not presented before
because “these grounds were in the affidavit” of trial counsel filed
in the state-habeas proceedings. (Pet. 8, ECF No. 8.) With no
4
explanation, Petitioner’s second, fifth, and sixth grounds were also
raised for the first time in this federal petition. Accordingly,
grounds
two
through
six
are
unexhausted
for
purposes
of
§
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. 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 of the claims absent a
showing of cause and prejudice or that a fundamental miscarriage of
justice will result from the Court’s refusal to consider the claims.
See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Nobles v.
Johnson, 127 F.3d 409, 423 (5th Cir. 1997).
In a pair of recent decisions, the United States Supreme Court
has recognized a narrow exception to the procedural-default doctrine
where a federal habeas-corpus petitioner can make a showing that his
failure
to
exhaust
available
state
remedies
on
a
federal
constitutional claim of ineffective assistance by trial counsel
resulted from deficient performance on the part of the petitioner’s
state habeas counsel. See Martinez v. Ryan, 132 S. Ct. 1309 (2012)
(“Inadequate assistance of counsel at initial review collateral
proceedings may establish cause for a prisoner’s procedural default
of a claim of ineffective assistance at trial); Trevino v. Thaler,
133 S. Ct. 1911 (2013). In Trevino, the Court reaffirmed the narrow
focus of its holding in Martinez: “In Martinez v. Ryan, . . ., this
5
Court held that ‘a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at
trial if, in the [state’s] initial-review collateral proceeding,
there
was
no
counsel
or
counsel
in
that
proceeding
was
ineffective.’” Trevino, 133 S. Ct. at 1912.
Petitioner was represented by counsel on state habeas review.
Therefore, the question becomes whether Petitioner’s unexhausted
ineffective-assistance-of-trial-counsel claims are substantial–i.e.,
that the claims have merit, and whether Petitioner’s state-habeas
counsel was ineffective for not raising the claims. Trevino, 133 at
1921. To establish an ineffective-assistance claim, 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.
Strickland v. Washington, 466 U.S. 668, 688 (1984). Both prongs of
the
Strickland
test
must
be
met
to
demonstrate
ineffective
assistance. Id. at 687, 697. In applying this test, a court must
indulge a strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance. Id. at 668, 68889. 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.
Petitioner claims that counsel filed a “Motion to Require Child
to Testify” but was ineffective by stating in his affidavit that he
6
chose, as opposed to his client, to waive Petitioner’s right to
confront and cross-examine the victim. Petitioner is correct to the
extent
that
counsel
did
file
the
motion,
however
Petitioner
misstates counsel’s affidavit. Counsel states that he “chose not to
push the issue of having the child victim testify” based upon the
result of his investigation and belief that calling the victim as a
witness would merely bolster the state’s evidence, see infra. (Adm.
R., State Habeas R. 115-17, ECF No. 23-21.) Clearly, counsel’s
decision not “to push” the matter was strategic. Such 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 (5th Cir. 1992).
Petitioner claims trial counsel was ineffective by failing to
call his wife K., K.L.’s mother, as a witness. Counsel, however,
explained in his affidavit that he decided not to call K. after
discussing the case with her on the telephone. Counsel avers in his
affidavit that she—
sounded extremely medicated. Her speech was slurred and
she did not respond to my questions in a normal manner.
This led me to ask her whether she was intoxicated or on
medication. She told me that she was medicated but she was
taking her medications according to her prescriptions.
This concerned me because the complainant’s outcry to her
older sister included a statement that the mother was on
medication during the incident and would not wake up. K.’s
physical condition at the time that I interviewed her by
telephone concerned me as it potentially supported the
veracity of the complainant’s outcry.
(Adm. R., State Habeas R. 116, ECF No. 23-21.) Petitioner provides
7
no credible evidence indicating what K. would have testified to or
how her testimony would have benefitted his defense. “[C]omplaints
of uncalled witnesses are not favored, because the presentation of
testimonial evidence is a matter of trial strategy, and because
allegations of what a witness would have testified are largely
speculative.” United States v. Cockrell, 720 F.2d 1423, 1427 (5th
Cir. 1983) (quoting Buckelew v. United States, 575 F.2d 515, 521
(5th Cir. 1978)). Where “the only evidence of a missing witness’s
testimony is from the defendant,” claims of ineffective assistance
are viewed with great caution. United States v. Cockrell, 720 F.2d
1423,
1427
(5th
Cir.
1983).
This
Court
will
not
assume
that
witnesses from whom no affidavits are presented would have testified
favorably for the defense.
Petitioner claims counsel was ineffective by writing a letter
to the Texas Court of Criminal Appeals “demanding that the writ of
habeas corpus 11.07 be dismissed on his client.” (Pet. 7, ECF No.
8.) The Court finds no such letter in the record. Instead, it
appears Petitioner misconstrues a letter his state habeas counsel
sent to Petitioner stating:
Unfortunately, the trial court has received an affidavit
from your trial attorney and has recommended to the Court
of Criminal Appeals that the writ be denied. A copy of the
documents I received is enclosed.
(Pet’r’s Orig. Pet., Ex. 3, ECF No. 1.) The trial court, and not
trial counsel, made the recommendation that Petitioner’s state
habeas application be denied. This claim has no factual basis and is
8
frivolous.
Petitioner claims trial counsel did not adequately investigate
the case. Counsel states in his affidavit that he interviewed Capt.
Craig Goen, one of the investigating officers, about the case and
the two witnesses Petitioner wanted him to contact, K. and S.J.,
about the truthfulness of the victim. Counsel also reviewed the
forensic interview video numerous times and spoke to Petitioner.
(Adm. R., State Habeas R. 115-17, ECF No. 23-21.) Petitioner fails
to allege with specificity what a more thorough investigation would
have revealed and how it would have altered the outcome of his
trial. United States v. Green, 882 F.2d 999, 1002-03 (5th Cir.
1989). Conclusory allegations of ineffective assistance do not raise
a constitutional issue in a federal habeas proceeding. Ross v.
Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
Finally, Petitioner claims counsel was ineffective by failing
to challenge or strike venireperson number 36, who ultimately sat on
the jury. During voir dire, outside the presence of the other
veniremembers, the following exchange took place:
VENIREPERSON 36:
I think the Court needs to be
aware that I have a son that was convicted of a similar
crime and is serving in prison. I don’t’ feel like
necessarily that makes me an impartial juror. I didn’t
want to come here without y’all knowing that.
THE COURT:
Okay.
VENIREPERSON 36:
I feel like -– actually, I see
the family. It was all in the family. I could probably -I am very open to how serious this is. The family, the
tragedy involved.
9
And also it -- I’m not -- I don’t’ have
that -- I don’t know -- prejudice that some people might
have.
THE COURT:
Well, I sure think you did –
VENIREPERSON 36:
I just wanted –
THE COURT:
I sure think you did the right thing
to tell us about that. But the bottom-line question that
the attorneys and I would have is, can you set that aside
-- that experience aside and be a fair and impartial juror
in this case.
VENIREPERSON 36:
It’s caused me a little stress to
sit here, but I’ve kind of worked through it, and I really
thought about it, and I believe that I could be fair.
. . .
TRIAL COUNSEL: You mentioned it caused you little bit
of stress. What makes you think, when you start hearing
evidence, that the stress won’t return?
VENIREPERSON 36:
me some stress.
That’s what I said. It’s caused
TRIAL COUNSEL: You’re going to hear evidence:
VENIREPERSON 36:
Yes. My son -- it’s my son that
was involved. He didn’t have a trial. It was a plea
bargain. He was guilty. He was, you know . . .
TRIAL COUNSEL: Under stress. I guess the question is,
you’re not under stress right now, correct?
VENIREPERSON 36:
No, I’m fine.
TRIAL COUNSEL: But under stress of reviving those
memories and everything, are you going to be able to be
impartial and render a –- you know, your decision based on
impartiality and not based on the stress that you’re
under?
VENIREPERSON 36:
My honest opinion is, do I really
-- would this be the type of trial that I would choose -I mean, to be a part of? No. But can I put aside
everything and be fair and honest? I believe -- yes.
10
(Adm. R., Reporter’s R., vol. 3, 86-88, ECF No. 23-8.)
Petitioner claims that he expressed his concerns about the
potential juror to counsel but counsel ignored his concerns because
he believed the juror could be fair and impartial and because he
believed the juror would be a “good juror because of all the
problems she was having with all this.” (Pet., Attach. 4, ECF No. 83.) Based on the juror’s own indication, it was reasonable for
counsel to believe the juror harbored no actual bias and, in fact,
might be sympathetic to the defense. See Virgil v. Dretke, 446 F.3d
598, 608-10 (5th Cir. 2006). Nothing in the record indicates that
the juror’s experience prevented or substantially impaired her
performance as a juror in accordance with her instructions and oath.
United States v. Scott, 159 F.3d 916, 925-26 (5th Cir. 1998).
Petitioner has failed to show that his unexhausted ineffectiveassistance-of-trial-counsel claims have merit or that state habeas
counsel was ineffective by not raising the claims in his state
habeas application. Trevino, 133 at 1921. Nor has he demonstrated
that a miscarriage of justice will result if the Court does not
consider the claims. Consequently, the exceptions to the proceduraldefault doctrine have no application to his unexhausted ineffectiveassistance-of-trial-counsel claims. Petitioner grounds two through
six are therefore procedurally barred from the Court’s review.
IV.
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
11
A § 2254 habeas petition is governed by the heightened standard
of review provided for in the Anti-Terrorism and Effective Death
Penalty Act (AEDPA). See 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 federal law as established by the Supreme Court
or that is based on an unreasonable determination of the facts in
light of the record before the state court. See 28 U.S.C. §
2254(d)(1)–(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This
standard is difficult to meet but “stops short of imposing a
complete
bar
on
federal
court
relitigation
of
claims
already
rejected in state proceedings.” Harrington, 562 U.S. at 102.
The statute further 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. This presumption of correctness applies to
both express and implied findings of fact. Valdez v. Cockrell, 274
F.3d 941, 948 (5th Cir. 2001). When the Texas Court of Criminal
Appeals denies relief in a state habeas-corpus application without
written order, typically it is an adjudication on the merits, which
is likewise entitled to this presumption. Ex parte Torres, 943
S.W.2d 469, 472 (Tex. Crim. App. 1997). A petitioner has the burden
of rebutting the presumption of correctness by clear and convincing
12
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).
V.
DISCUSSION
The Supreme Court recently set out in Harrington v. Richter the
standard under which a federal court is to consider an ineffectiveassistance-of-counsel claim raised in a federal habeas petition
subject to AEDPA’s strictures:
The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.
This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that
the inquiry, the analysis would be no different than if,
for example, this Court were adjudicating a Strickland
claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is
a necessary premise that the two questions are different.
For purposes of § 2254(d)(1), “an unreasonable application
of federal law is different from an incorrect application
of federal law.” A state court must be granted a deference
and latitude that are not in operation when the case
involves review under the Strickland standard itself.
562 U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410
(2000)). Accordingly, it is necessary only to determine whether the
state courts’ rejection of Petitioner’s ineffective-assistance claim
under
his
first
ground
was
contrary
to
or
an
objectively
unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685,
698-99 (2002); Kittelson v. Dretke, 426 F.3d 306, 315-17 (5th Cir.
2005); Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).
Petitioner claims trial counsel was ineffective by failing to
obtain a ruling on his motion to make the state “bring forth” K.L.
13
as a witness at trial. Trial counsel responded to the claim, in
toto, as follows:
In his allegation contained in Ground One, Applicant
claims I rendered ineffective assistance of counsel for
filing a Motion to Require the Child to Testify but never
asking for a ruling on the motion. Counsel did not ask for
a ruling on the matter as his trial preparation led him to
believe that doing so would lead to negative evidence
being presented against Mr. Leath.
During my investigation, I spoke with Captain Craig
Goen of the Palo Pinto County Sheriff’s Department about
his investigation as well as Deputy Lusk’s. He indicated
that the child complainant was very credible and would be
a good witness. Further, he indicated to me that no one
made an allegation that the complainant was not to be
believed [during] the investigation.
Further, at Mr. Leath’s request, I contacted K., his
wife and her mother S.J. to determine their assessment of
whether the complainant in this case was credible with her
allegations against Mr. Leath and to assess their
possibility as witnesses during the trial.
K., during the telephone conversation sounded
extremely medicated. Her speech was slurred and she did
not respond to my questions in a normal manner. This led
me to ask her whether she was intoxicated or on
medication. She told me that she was medicated but she was
taking her medications according to her prescriptions.
This concerned me because the complainant’s outcry to her
older sister included a statement that the mother was on
medication during the incident and would not wake up. K.’s
physical condition at the time that I interviewed her by
telephone concerned me as it potentially supported the
veracity of the complainant’s outcry.
I then spoke with S.J., K.’s mother and asked her
whether she thought the complainant was making the story
up. She adamantly told me she believed Mr. Leath actually
did it. I asked her how that was so and she told me that
the girls present at the house were not joking around or
jovial when they came back into the house after
complainant made her outcry. She questioned the girls when
they came in about why they were upset but all refused to
tell her. S.J. ultimately found out what was said and
14
indicated to me that Mr. Leath was lucky she did not find
out because she would have beaten him with a broomstick.
Throughout this conversation she maintained that she
believed the complainant and continued to blame Mr. Leath
for his alleged actions. Further, she told me that she was
very upset that someone would allege that the complainant
and the girls were making the story up and maintained that
that person would be lying if they did.
Next, I reviewed the CAC interview of the complainant
victim on multiple occasions and I did not see anything
that appeared to be inconsistent with her original outcry.
She looked poised and appeared very confident in what she
was doing under the circumstances.
Under those circumstances, I chose not to push the
issue of having the child victim testify as I believed
that such testimony would do nothing more than bolster the
State’s evidence.
(Adm. R., State Habeas R. 115-17, ECF No. 23-21.)
The state habeas court rejected Petitioner’s claim, found that
trial
counsel
was
not
ineffective,
and
recommended
denial
of
Petitioner’s state habeas application. (Adm. R., State Habeas R.
114, ECF No. 23-21.) The recommendation was followed by the Texas
Court of Criminal Appeals, which denied relief without a hearing or
written order. (Id., ECF No. 23-19.) In the absence of a written
opinion or express findings of fact, this Court assumes the state
courts applied the Strickland standard and made factual findings
consistent with the courts’ decision. Townsend v. Sain, 372 U.S.
293, 314 (1963); Schartzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.
2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002);
Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); Goodwin
v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997). Having reviewed the
15
record in its entirety, and assuming the state courts concluded that
Petitioner failed to demonstrate one or both prongs of Strickland,
the state courts’ adjudication of the claim is not an unreasonable
application Strickland in light of the evidence presented in state
court. Even without considering Strickland’s first prong, nothing in
the record suggests that calling the victim as a witness would have
resulted in Petitioner’s acquittal.
For
the
reasons
discussed,
the
Court
DENIES
Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
a certificate of appealability, and any motions not previously ruled
upon.
SIGNED October 4, 2016.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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