Kirk v. Stephens

Filing 16

Opinion and Order. For the reasons discussed herein, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED as the sole ground for relief is procedurally barred from this Court's review. A certificate of appealability is DENIED. (Ordered by Judge Reed C O'Connor on 6/21/2016) (trt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DOUGLAS LYNN KIRK,
Petitioner,
v.
LORIE DAVIS, Director,1
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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Civil Action No. 4:15-CV-673-O

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by Petitioner, Douglas Lynn Kirk, a state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded
that the petition should be denied.
I. BACKGROUND
Petitioner was charged in Tarrant County, Texas, in a three-count indictment with capital
murder (count one) and murder (counts two and three). Adm. R., Clerk’s R. 2, ECF No. 10-14. The
state appellate court set forth the factual and procedural background of the case as follows:
On the evening of April 24, 2010, Orlando Benavides helped Kirk move from
1700 Clover Lane to 2820 Raton Drive, loaning both his truck and physical labor.
Around 10:00 p.m., Kirk and Benavides made their last trip of the night to the Clover
Lane house. When Kirk and Benavides arrived at the Raton Drive house, Alphonso
Beza, who lived next door, approached them, introduced himself, and volunteered

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Effective May 4, 2016, Lorie Davis replaced Williams Stephens as director of the Correctional Institutions
Division of the Texas Department of Criminal Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is
automatically substituted as the party of record.

to help unload the truck. Kirk accepted Beza’s offer, and Beza invited Pedro Diaz
and another man to help unload the truck.
Around 1:00 a.m., Kirk announced that it was time for everyone to leave, said
good night to Beza and Diaz, and walked Benavides to his truck. What occurred after
Benavides left is disputed. Kirk claimed that he thought Beza and Diaz were trying
to steal from him and that they threatened him. After firing four warning shots into
the ceiling of his house, he kneeled in the corner of a bedroom and fired down the
hallway, killing both men.
Kirk was charged with murdering Beza and Diaz by shooting them with a
firearm. The State presented evidence to counter Kirk’s self-defense and defense-ofproperty theories, and after deadlocking on counts one and two, the jury found Kirk
guilty of count three–causing Diaz’s death by shooting him with a firearm–and
assessed his punishment at forty-seven years’ confinement and a $1,000 fine.
Id., Op. at 1-2, ECF No. 8-7.
The appellate court affirmed the trial court’s judgment of conviction, and the Texas Court
of Criminal Appeals refused Petitioner’s petition for discretionary review. Id. at 25; Resp’t’s
Preliminary Answer 3, ECF No. 15. Petitioner has not sought postconviction state habeas relief.
Resp’t’s Preliminary Answer 3, ECF No. 15. Petitioner brings one ground for relief in this federal
habeas petition, wherein he claims the evidence is legally insufficient to support his murder
conviction in violation of due process under the United States Constitution. Pet. 6, ECF No. 1.
Respondent asserts that the claim is unexhausted and that the petition should be dismissed without
prejudice so that Petitioner may return to state court to exhaust his claim. Resp’t’s Preliminary
Answer 1, 3-5, ECF No. 15.
II. EXHAUSTION
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in

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the state courts before requesting federal habeas relief. 28 U.S.C. § 2254(b)(1), (c)2; Fisher v. Texas,
169 F.3d 295, 302 (5th Cir. 1999). A state petitioner may satisfy the exhaustion requirement by
presenting both the factual and legal substance of his claim(s) to the Texas Court of Criminal
Appeals in either a petition for discretionary review or a state habeas corpus proceeding pursuant to
article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07
(West 2015); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998); Bd. of Pardons & Paroles
v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 484 (Tex. Crim. App. 1995).
Petitioner did not raise his insufficiency-of-the-evidence claim in his petition for
discretionary review and he has not filed a state habeas application.3 Thus, his claim is unexhausted.
When a defendant fails to properly exhaust an insufficiency-of-the-evidence claim, the Court may
find the claim procedurally barred if the “time to file a petition for discretionary review has expired.”
Haley v. Cockrell, 306 F.3d 257, 264 (5th Cir. 2002) (citing TEX. R. APP. P. 68.2), vacated on other
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The terms of 28 U.S.C. § 2254(b) and (c) provide in pertinent part as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted unless it
appears that —
(A) the applicant has exhausted the remedies
available in the courts of the State; or
(B)(i) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
...
(c) An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has
the right under the law of the State to raise, by any available procedure, the
question presented.

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Even if Petitioner had filed a state habeas application raising his claim, under Texas law, a challenge to the
sufficiency of the evidence used to support a conviction is not cognizable on habeas review. Ex parte Grigsby, 137
S.W.3d 673, 674 (Tex. Crim. App. 2004).

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grounds, 541 U.S. 386 (2004). By failing to timely present such claim in a petition for discretionary
review, Petitioner has procedurally defaulted the claim under Texas law. Such default constitutes an
adequate and independent state procedural ground to bar federal habeas review. Therefore, absent
a showing of cause and prejudice or a miscarriage of justice, which showing has not been made,
Petitioner’s sole ground for relief is procedurally barred. See Smith v. Johnson, 216 F.3d 521, 523-24
(5th Cir. 2000).
III. CONCLUSION
For the reasons discussed herein, Petitioner’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED as the sole ground for relief is procedurally barred from this Court’s
review. A certificate of appealability is DENIED.
SO ORDERED on this 21st day of June, 2016.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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