Vernon v. Stephens, Director, TDCJ-ID
Filing
22
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, Eli Vernon III, also known as Eli Mims, a state prisoner, against Lorie Davis, director of the Texas Department of Cr iminal 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. (Ordered by Senior Judge Terry R Means on 4/13/2017) (hth)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ELI VERNON III, aka ELI MIMS,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:15-CV-855-Y
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, Eli Vernon III,
also known as Eli Mims, 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
In January 2013 in Parker County, Texas, Case No. CR13-0053,
Petitioner was indicted on one count of evading arrest or detention
with a motor vehicle. (Adm. R., Clerk’s R. 79, ECF No. 12-12.) A
jury found Petitioner guilty, found that he used a deadly weapon in
the
course
of
committing
the
offense,
found
the
enhancement
allegations in the indictment true, and assessed his punishment at
50
years’
confinement.
(Id.
at
13.)
Petitioner
appealed
his
conviction, but the Eleventh District Court of Appeals of Texas
affirmed the trial court’s judgment and the Texas Court of Criminal
Appeals refused Petitioner’s petition for discretionary review.
(Id., Docket Sheet 2, ECF No. 9-5.) Petitioner also sought state
postconviction
habeas
relief
by
filing
a
state
habeas-corpus
application, which was denied by the Texas Court of Criminal Appeals
without hearing on the findings of the trial court. (Id., Writ Rec’d
&
Action
Taken,
ECF
Nos.
9-20
&
9-22.)
The
appellate
court
summarized the testimony at trial as follows:
B.J. Ellis testified that, on the afternoon of
November 14, 2012, he was at a gas station in Weatherford
when Appellant approached him and tried to sell him
jewelry. Appellant showed Ellis receipts from Gordon’s
Jewelers in an attempt to prove that the jewelry was
real. Appellant stated that the jewelry was purchased
with a stolen credit card and that he was willing to sell
the jewelry for “pennies on the dollar.” Ellis believed
that Appellant was involved in criminal activity and
rejected his offer.
After Appellant walked away, Ellis called 911 and
reported Appellant’s behavior. Appellant drove off in
what Ellis believed was a black Chevrolet Malibu, and
Ellis followed him. Ellis continued to speak with the 911
dispatcher until the responding police officers located
Appellant’s vehicle. According to Ellis, the officers
engaged Appellant and motioned for him to pull over.
Appellant did not pull over; instead, he accelerated and
erratically crossed lanes. Appellant was eventually
detained, and Ellis confirmed that Appellant was the same
individual who had attempted to sell him jewelry at the
gas station.
The 911 call was played for the
recording, Ellis reports that he is
2
jury. On the
traveling on
Interstate 20, following a black Chevrolet Malibu,
because the driver just attempted to sell him jewelry
that was purchased with a stolen credit card. The 911
dispatcher can then be heard incorrectly relaying Ellis's
report to police, stating that a man tried to sell Ellis
a stolen credit card.
Captain William “Billy” Ray of the Willow Park
Police Department (WPPD) testified that, on the afternoon
of November 14, 2012, dispatch informed him that Ellis
was following an individual who had just attempted to
sell him a stolen credit card. Captain Ray then headed to
Ellis’s location in his marked police vehicle.
Captain Ray caught up with Ellis and observed that
Officer Tracey Cryer was already in pursuit of Appellant.
As Captain Ray and Officer Cryer chased Appellant, who
was actually driving a black Chevrolet Impala,2 they
reached speeds up to 107 miles per hour. During the
pursuit, Appellant drove recklessly through traffic and
erratically switched lanes. Captain Ray noted that
Appellant’s behavior was consistent with someone who was
fleeing from the police.
2
Captain Ray noted that a Chevrolet Malibu and
a Chevrolet Impala are similar in appearance.
The pursuit finally ended when another car swerved
in front of Appellant, which caused him to slam on his
brakes and lose control of his vehicle. Appellant’s
vehicle struck a guardrail before it rammed into a light
pole in the median of the highway and came to a stop.
Captain Ray parked his patrol car directly in front
of Appellant’s vehicle to prevent him from driving away.
Captain Ray then drew his weapon and ordered Appellant to
exit his vehicle. Appellant complied with the order, and
Officer Cryer assisted him out of the vehicle.3
3
The video taken from the dashboard camera
in Captain Ray’s patrol vehicle was also played
for the jury. The video corroborated Captain
Ray’s testimony.
Officer Cryer testified that, on
he was notified by dispatch that the
Chevrolet Malibu, later confirmed to
reportedly in possession of stolen
3
November 14, 2012,
driver of a black
be Appellant, was
jewelry and/or a
stolen credit card. Officer Cryer then headed to
Appellant’s location in his marked patrol car. Officer
Cryer eventually caught up to Appellant’s vehicle and
turned on his lights and siren.
Officer Cryer reported that the officers reached
speeds up to 107 miles per hour while in pursuit of
Appellant. Officer Cryer noted that Appellant drove
recklessly and made it apparent that he did not want to
stop. Appellant’s vehicle eventually spun out of control,
struck a guardrail, and hit a light pole in the median of
the highway.
Officer Cryer subsequently searched Appellant’s
vehicle and found several small boxes containing various
pieces of inexpensive costume jewelry, a bag of loose
costume jewelry, and a number of receipts from Gordon’s
Jewelers. Officer Cryer noted that the receipts had
several obvious errors on them that indicated they were
fake.
Appellant made a motion for directed verdict and
argued that the State had failed to prove each element of
the charged offense. The trial court denied the motion.
(Id., Mem. Op. 2-4, ECF No. 9-6.)
II.
ISSUES
Petitioner raises the following grounds for relief:
(1)
He was denied his Sixth and Fourteenth Amendment
right to a fair cross-section of the community on
his venire panel;
(2)
His indictment and jury charge failed to “give
culpable mental state” thereby rendering the trial
court’s judgment void;
(3)
He was subjected to an illegal search and seizure
violating his Fourth and Fourteenth Amendment
rights;
(4)
The trial judge failed to give a mandatory jury
instruction under article 38.23(a) of the Texas Code
of Criminal Procedure in violation of his right to
due process;
4
(5)
The trial judge erred in failing to grant a directed
verdict;
(6)
He was denied his Sixth and Fourteenth Amendment
right to effective assistance of counsel; and
(7)
He was denied effective review
appellate and habeas courts.
by
the
state
(Pet. 6-7(a), ECF No. 1.)
III.
RULE 5 STATEMENT
Respondent does not believe that the petition is time-barred,
subject to the successive-petition bar, or that Petitioner has
failed to exhaust his state-court remedies as to the claims raised.
(Resp’t’s Answer 6, ECF No. 17.)
IV.
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
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.
5
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.
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 on a state habeascorpus
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). In such a situation, a federal court may infer fact findings
consistent with the state court’s disposition and assume that the
state court 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 (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, 274 F.3d at 948 n.11; Goodwin
v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997). A 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).
Petitioner raised his claims in his state habeas application,
6
and, based on the record, the habeas court entered express findings
that
there
were
no
controverted,
previously
unresolved
facts
material to the legality of Petitioner’s confinement; that his
claims were “not proper” for habeas relief; and that his claims were
“without relief.” (Adm. R., Writ 78, ECF No. 9-22.) The court
therefore concluded that relief should be denied. In turn, the Texas
Court of Criminal Appeals denied the application without written
order on the trial court’s findings. Thus, to the extent more
particularized findings were not made by the state court as to each
claim, this Court will infer fact findings consistent with the state
courts’
disposition
and,
absent
any
evidence
that
incorrect
standards were applied, assume that the state courts applied correct
standards of federal law as determined by the Supreme Court.
V.
DISCUSSION
A. Fair Cross-Section
Under his first ground, Petitioner, who is African American,
asserts that the jury panel did not represent a fair cross-section
of the community because, although 200 jurors were summoned, only
53 appeared for duty of which there were “[n]o blacks and [only] one
Hispanic.” (Pet. 6, ECF No. 1.) He further asserts that the state
acknowledges that it is not unusual that no “blacks” are in the jury
pool but does nothing to correct the on-going problem or “maintain
the integrity of the system.” (Pet’r’s Mem. 7-8, 11- ECF No. 2.)
7
Petitioner relies upon a report compiled by “The County Information
Program” and a 2013 census measurement of actual percentage of
African Americans (2.0%), Hispanic or Latino (11.2%), and other
minority races (3.3%) in Parker County of an estimated population
of 120,207. (Pet’r’s Mem., Ex. A, ECF No. 2.)
County officials have an affirmative duty under the Sixth and
Fourteenth Amendments to develop and use a system that will result
in the placement of a fair cross-section of the community on jury
rolls. Taylor v. Louisiana, 419 U.S. 522, 526-38 (1975); Avery v.
Georgia, 345 U.S. 559, 561 (1953). To establish a prima-facie case
for
a
violation
of
the
Sixth
Amendment’s
fair
cross-section
requirement, under Duren v. Missouri, 439 U.S. 357 (1979), a
defendant must show:
(1) that the group alleged to be excluded is a
“distinctive” group in the community; (2) that the
representation of this group in venires from which juries
are selected is not fair and reasonable in relation to
the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion
of the group in the jury-selection process.
Id. at 364.
In its response to Petitioner’s state habeas application, the
state
conceded
the
first
prong
of
Duren,
but
contended
that
Petitioner in no way established the second and third prongs. (Adm.
R., Writ 55, ECF No. 9-22.) Relevant to the second prong, the state
explained that in Parker County,
[v]eniremembers are chosen randomly, by computer through
voter registration, driver’s license and identification
8
card registration lists by the Parker County District
Clerk, as required by law. Some two hundred citizens are
summoned for jury duty by the Parker County Sheriff as
set forth by law for every jury week from the list
prepared by the District Clerk.
(Adm. R., Writ 56, ECF No. 9-22.) The state further explained that
given the low percentage of African Americans in the county, “it
would not be unusual for no African-American citizens to appear on
any given randomly-generated list of only two hundred potential
jurors.” (Id.) And, the state noted that the 2.0% figure did not
represent qualified jurors or take into account that some African
American citizens may have been summoned for Petitioner’s trial but
did not appear. Finally, the state argued that Petitioner failed to
satisfy the third prong because his “information” related only to
the venire in his trial and there was no evidence establishing that
African Americans are systematically excluded from the pool of
potential jurors in Parker County. (Id. at 58-59.)
The state courts’ rejection of the claim was reasonable in
light of the evidence, and in line with Supreme Court precedent on
the issue. The accepted methodology for determining the severity of
a minority group’s underrepresentation on jury panels is to measure
the “absolute disparity” between the proportion of jury-eligible
members of a distinctive group in the relevant community and its
representation in jury venires for that same community. See United
States v. Garcia, 121 F.3d 704, 1997 WL 450169, at *3 (5th Cir.
1997); United States v. Maskeny, 609 F.2d 183, 189-90 (5th Cir.
9
1980). Petitioner failed to introduce any evidence establishing that
the representation of African Americans on Parker County venires is
not fairly and reasonably related to the number of such persons in
the community who are qualified to sit on a jury. Duren does not
require that “juries actually chosen must mirror the community.”
Taylor, 419 U.S. at 538. “The fair-cross-section requirement does
not guarantee jur[ies] of any particular composition. Rather, it
only guarantees that the jury wheels, pools of names, panels, or
venires from which juries are drawn must not systematically exclude
distinctive groups.” Paredes v. Quarterman, 574 F.3d 281, 289 (5th
Cir. 2009) (internal quotations and citations omitted).
As
to
the
underrepresentation
third
must
prong
have
of
been
Duren,
the
result
the
of
cause
of
systematic
exclusion, or “inherent in the particular jury-selection process
utilized.”
Duren,
439
U.S.
at
366.
It
is
the
burden
of
the
petitioner to make this showing. United States v. Aponte–Suarez, 905
F.2d 483, 492 (1st Cir. 1990). To accomplish this, a petitioner must
demonstrate not only that the distinctive group is not adequately
represented in his own jury venire, but also that this is the
general practice of other venires. See Timmel v. Phillips, 799 F.2d
1083, 1083 (5th Cir. 1986). The Supreme Court cases that have
addressed the cross-section issue have examined the selection
process of a number of jury venires over a period of time. See,
e.g., Duren, 439 U.S. at 366 (reviewing the discrepancies both over
10
a period of nearly a year and in the petitioner’s specific case);
Taylor, 419 U.S. at 524 (examining a period of almost one year). In
Duren, the Court found that the petitioner’s “demonstration that a
large discrepancy occurred not just occasionally but in every weekly
venire for a period of nearly a year manifestly indicates that the
cause of the underrepresentation was systematic. . . .” 439 U.S. at
366. Here, in stark contrast to Duren, Petitioner presents only
blanket statistics regarding the breakdown in population of whites
and minorities in Parker County. He makes no showing of the
selection process of a number of jury venires over a period of time.
In short, Petitioner presented no relevant or persuasive evidence,
statistical
or
otherwise,
demonstrating
the
degree
of
underrepresentation or systematic exclusion of persons of his race
or another identifiable group or how Parker County’s procedure
constitutes a system impermissibly susceptible to abuse and racial
discrimination.
B.
Indictment and Jury Charge
In his second ground, Petitioner claims his indictment and jury
charge “failed to give [a] culpable mental state rendering [the]
judgment void.” (Pet. 6, ECF No. 1.) Specifically, he argues that
the absence of the term “knowingly” in the indictment and jury
charge resulted in a failure to charge a culpable mental state.
(Pet’r’s Br. 13, ECF No. 2.) The indictment alleged that on or about
November 14, 2012, Petitioner–
11
did then and there while using a motor vehicle
intentionally flee from Tracey Cryer, a person the
defendant knew was a peace officer who was attempting
lawfully to arrest or detain the defendant.
(Adm. R., Clerk’s R. 5, ECF No. 9-4.) The jury charge mirrored the
indictment. (Id. at 17.)
Under § 38.04 of the Texas Penal Code, a “person commits an
offense if he intentionally flees from a person he knows is a peace
officer . . . attempting lawfully to arrest or detain him.” TEX.
PENAL CODE. ANN. § 38.04(a) (West Supp. 2014). Both the indictment and
the jury charge track the language of the statute.
“[T]he sufficiency of a state indictment is not a matter for
federal habeas corpus review unless it can be shown that the
indictment
is
so
defective
that
the
convicting
court
had
no
jurisdiction.” Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.
1980). See also McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994)
(“An indictment should be found sufficient unless no reasonable
construction of the indictment would charge the offense for which
the defendant has been convicted.”). State law dictates whether a
state indictment is sufficient to confer a court with jurisdiction,
and
where
the
state
courts
have
held
that
an
indictment
is
sufficient under state law, a federal court need not address that
issue. McKay, 12 F.3d at 68-69; Yohey v. Collins, 985 F.2d 222, 229
(5th Cir. 1993).
Petitioner raised his claim in his state habeas petition. The
rejection of the claim by the Texas Court of Criminal Appeals
12
without written order implies the indictment is sufficient and
forecloses federal habeas review. See Wood v. Quarterman, 503 F.3d
408, 412 (5th Cir. 2007) (because sufficiency of indictment was
squarely presented to highest state court and that court held trial
court had jurisdiction, claim is foreclosed to federal habeas
review).
Further, an improper jury instruction rarely justifies federal
habeas review. Mayabb v. Johnson, 168 F.3d 863, 867 (5th Cir. 1999).
The jury charge tracked the statutory language and mirrored the
indictment;
thus,
it
cannot
be
considered
inadequate
to
have
informed the jury of all the elements it was required to consider.
Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980). Petitioner
fails to establish that the instruction was erroneous, much less
that it by itself so infected the entire trial that the resulting
conviction violates the Constitution. Id.
C.
Illegal Search and Seizure
Under his third, fifth, and seventh grounds, Petitioner claims
his Fourth Amendment right to be free from illegal search and
seizure was infringed when the police initiated their detention of
him without reasonable suspicion; that the trial court violated his
right to due process in denying his motion for a directed verdict
when the state failed to prove the police had reasonable suspicion
to initiate the detention; and that the state courts “erred in
holding the police had reasonable suspicion to initiate detention
13
even when [the] facts were wrong.” (Pet. 7, ECF No. 1.)
Petitioner raised his Fourth Amendment and due-process claims
on appeal in the context of his claim that the trial court erred in
denying his motion for directed verdict. Relying solely on state
law, the appellate court addressed the issue as follows:
Appellant argues that the trial court erred when it
denied his motion for directed verdict. Appellant
specifically claims that the officers who attempted to
detain him were not lawfully attempting to detain him; he
asserts that the officers lacked reasonable suspicion to
detain him because the 911 dispatcher incorrectly
informed them that he was in possession of a stolen
credit card.
Under the Fourth Amendment, a warrantless detention
of a person that amounts to less than a full-blown
custodial arrest must be justified by reasonable
suspicion. A police officer has reasonable suspicion to
detain if he has specific, articulable facts that,
combined with rational inferences from those facts, would
lead him to reasonably conclude that the person detained
is, has been, or soon will be engaged in criminal
activity. “This standard is an objective one that
disregards the actual subjective intent of the arresting
officer and looks, instead, to whether there was an
objectively justifiable basis for the detention.”
An officer is not required to confirm that a
particular offense has been committed in order to have
reasonable suspicion; it is enough that the information
provided to the officer “is sufficiently detailed and
reliable—i.e., it supports more than an inarticulate
hunch or intuition—to suggest that something of an
apparently criminal nature is brewing.” Moreover, the
officer need not be personally aware of every fact that
objectively supports reasonable suspicion; “rather, ‘the
cumulative information known to the cooperating officers
at the time of the stop is to be considered in
determining whether reasonable suspicion exists.’” A 911
police dispatcher is generally regarded as a “cooperating
officer” for purposes of making this determination.
Furthermore, “information provided to police from a
14
citizen-informant who identifies himself and may be held
to account for the accuracy and veracity of his report
may be regarded as reliable.” When information is
obtained from a known citizen-informant, the only
question is whether the information, “viewed through the
prism of the detaining officer's particular level of
knowledge
and
experience,
objectively
supports
a
reasonable suspicion to believe that criminal activity is
afoot.”
In this case, Ellis identified himself when he
called 911; therefore, he could be held accountable for
the accuracy and veracity of his report. Under these
circumstances, we find that the information Ellis
provided to the police was reliable. Ellis told the 911
dispatcher that someone had just attempted to sell him
jewelry that had been purchased with a stolen credit
card. The 911 dispatcher then incorrectly relayed Ellis’s
report by telling police that a man had tried to sell
Ellis a stolen credit card. Captain Ray and Officer Cryer
both testified that dispatch reported that Appellant was
in possession of a stolen credit card.
Reasonable
mistakes
about
facts
may
still
legitimately justify an officer’s conclusion that
reasonable suspicion exists. Mistakes will not vitiate an
officer’s actions in hindsight so long as his actions
were lawful under the facts as he reasonably, albeit
mistakenly, perceived them to be. Although the 911
dispatcher and the responding officers were mistaken
about the specific details of Ellis’s report, we find
that those mistakes were reasonable. Thus, the fact that
Appellant was not in possession of a stolen credit card
at the time of his arrest does not negate the officers’
earlier conclusion that reasonable suspicion existed to
detain him.
Based on our review of the evidence, we conclude
that the totality of the circumstances gave rise to a
reasonable suspicion that Appellant was involved in
criminal activity. The facts, as they were provided to
Captain Ray and Officer Cryer, were sufficient to suggest
that “something of an apparently criminal nature [was]
brewing.”
The evidence presented at trial established that
Appellant led police officers on a chase that lasted
several minutes and reached speeds up to 107 miles per
15
hour. Given our earlier finding that the officers had
reasonable suspicion to detain Appellant, we conclude
that the evidence was sufficient because a rational jury
could have found beyond a reasonable doubt that Appellant
evaded arrest when he intentionally fled from the
officers who were lawfully trying to arrest or detain him.
(Adm. R., Mem. Op. 5-7, ECF No. 9-6 (citations omitted) (emphasis
in original).) Petitioner’s Fourth Amendment and due-process claims
were also rejected by the Texas Court of Criminal Appeals on state
habeas review.
Under Stone v. Powell, 428 U.S. 465 (1976), a federal court may
not grant habeas relief based on a Fourth Amendment violation where
the state has provided an opportunity for full and fair litigation
of the issue. Id. at 493-95. In order to obtain postconviction
relief in federal court, a petitioner must plead and prove that the
state-court proceeding was inadequate. See Davis v. Blackburn, 803
F.2d 1371, 1372 (5th Cir. 1986). Toward that end, Petitioner asserts
that the appellate court “changed” officer Cryer’s testimony to
support its opinion by stating that officer Cryer “eventually caught
up to Appellant’s vehicle and turned on his lights and siren,” when,
in fact, the officer testified that he had his lights on prior to
catching up to Petitioner to get traffic to move over. (Pet’r’s Br.
10, ECF No. 2; Adm. R., Reporter’s R., vol. 3, 113, ECF No. 9-10.)
Petitioner further asserts that the Texas Court of Criminal Appeals’
ruling is therefore rendered “moot due to the erroneous ruling” of
the appellate court. (Pet’r’s Br. 19, ECF No. 2.) Finally, he
asserts that the state courts rendered their rulings without holding
16
“any hearings or investigation of the claims,” despite his claims
of judicial bias. (Id. at 19-20.)
First,
the
factual
discrepancy
in
the
appellate
court’s
recitation of the facts is doubtless due to inadvertence and is
immaterial–i.e., insufficient to raise a disputed fact issue placing
the constitutional validity of the stop in issue. Texas courts have
held that if there is no genuine dispute of fact that is outcomedeterminative, the legality of the conduct is determined by the
trial judge alone, as a question of law. See Madden v. State, 242
S.W.3d 504, 509-10 (Tex. Crim. App. 2012). And, if other facts, not
in
dispute,
are
sufficient
to
support
the
lawfulness
of
the
challenged conduct, the disputed fact issue is not submitted to the
jury because it is not material to the ultimate admissibility of the
evidence.
Id.
groundless.
Second,
Third,
Petitioner’s
since
a
claim
hearing
was
of
judicial
held
bias
regarding
is
the
constitutional validity of the stop and detention at his trial,
Petitioner cannot be heard to complain that he did not receive
another evidentiary hearing in his state postconviction proceedings.
Petitioner had a full and fair opportunity to litigate his claims
in state court. Therefore, the Stone bar applies.
D.
Jury Instruction under Article 38.23(a)
Under his fourth ground, Petitioner claims the trial court
failed to instruct the jury pursuant to Texas Code of Criminal
Procedure article 38.23(a), in violation of his right to due
17
process. (Pet. 7, ECF No. 1.) This ground relates to a violation of
state law and is not cognizable in federal habeas corpus. West v.
Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996).
E.
Ineffective Assistance of Counsel
Finally, under his sixth ground, Petitioner claims he received
ineffective assistance of trial counsel because counsel failed to
(1) object to the composition of the jury, (2) object to the faulty
indictment and jury charge, (3) move for a jury instruction on
reasonable suspicion and object to the trial judge’s acting in the
jury’s capacity, and (4) object to incorrect jury argument by the
prosecution during voir dire and closing argument. (Pet. 7(a) &
Pet’r’s Br. 9-10, ECF Nos. 1 & 2.)
A
criminal
defendant
has
a
constitutional
right
to
the
effective assistance of counsel at trial. See U.S. CONST. amend. VI,
XIV;
Strickland
v.
Washington,
466
U.S.
668,
688
(1984).
To
establish ineffective assistance of counsel 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,
466 U.S. at 688. 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, 688-89. Judicial scrutiny of counsel’s
18
performance must be highly deferential and every effort must be made
to eliminate the distorting effects of hindsight. Id. at 689.
The Supreme Court emphasized in Harrington v. Richer the
standard under which a federal court is to consider an ineffectiveassistance-of-counsel claim raised in a 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. 86, 101 (2011) (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
claims 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’s first three ineffective-assistance claims are
based upon one or more of the grounds raised in this federal
petition. Applying the appropriate deference to the state courts’
19
implied
factual
findings,
and
having
independently
reviewed
Petitioner’s claims in conjunction with the state court records, it
does not appear that the state courts’ application of Strickland was
objectively unreasonable. There was no legal basis for counsel to
object to the composition of the jury pool or the sufficiency of the
indictment
or
request
an
instruction
under
article
38.23(a).
Counsel is not required to make frivolous or futile motions or
objections. Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002);
Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1988).
Petitioner also claims counsel was ineffective by failing to
object to the prosecution’s “misstatements on their burden of proof
during voir dire and closing argument of [the] guilt/innocence
phase” of his trial. (Pet’r’s Br. 17, ECF No. 2.) Specifically,
Petitioner complains of the prosecutor’s statements “that the state
was not required to prove why Petitioner ran.” (Id. at 18.) As a
matter of state law, motive is not an essential element of a crime.
Bush v. State, 628 S.W.2d 441, 444 (Tex. Crim. App. 1982); Rodriguez
v. State, 486 S.W.2d 355, 358 (Tex. Crim. App. 1972). The Court does
not find the complained-of statement in the prosecutions’s closing
arguments. When the prosecutor’s voir dire is read in context, it
is evident he was explaining to the jury that the state only had to
prove the elements of the offense. (Adm. R., Reporter’s R., vol. 2,
20, ECF No. 9-9.) Since the prosecutor’s remarks were not improper,
trial counsel was not obligated to object. As previously noted,
20
counsel is not required to make frivolous objections. Johnson, 306
F.3d at 255; Green, 160 F.3d at 1037.
Petitioner has not demonstrated deficient performance or shown
any reasonable probability that the outcome of his trial would have
been
different
but
for
counsel’s
deficient
representation.
A
petitioner shoulders a heavy burden to overcome a presumption that
his counsel’s conduct is strategically motivated and to refute the
premise that “an attorney’s actions are strongly presumed to have
fallen within the wide range of reasonable professional assistance.”
Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985). Petitioner has
presented no evidentiary, factual, or legal basis 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. See 28 U.S.C. §
2254(d).
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Further, a certificate of appealability will not be issued.
Such a certificate may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). 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
21
are
adequate
to
deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 326 (2003)(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Upon review and consideration of the record in the abovereferenced case as to whether Petitioner 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 this order.
Therefore, a certificate of appealability should not issue.
SIGNED April 13, 2017.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
22
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