Smith v. Stephens

Filing 20

OPINION AND ORDER: Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. Further, because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is also DENIED. (Ordered by Judge Reed C. O'Connor on 6/8/2017) (baa)

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

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Civil Action No. 4:16-CV-043-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, Michael Smith, a state prisoner confined in the Correctional Institutions Division of
the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent.2 After considering the pleadings and relief sought by Petitioner, the Court has
concluded that the petition should be denied.
I. BACKGROUND
On December 15, 2011, in the Criminal District Court Number Four of Tarrant County,
Texas, a jury found Petitioner guilty of felony driving while intoxicated (DWI). Adm. R., Clerk’s
R. 76, ECF No. 14-10. The following day, the jury found the habitual-offender notice in the
indictment true and assessed Petitioner’s punishment at 55 years’ confinement. Id. at 87. Petitioner
appealed his conviction, but the Seventh District Court of Appeals of Texas affirmed the trial court’s
1

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.
2

Petitioner filed a prior federal habeas petition challenging the same state conviction, which was dismissed for
lack of prosecution. See Order of Dismissal & Final J., Smith v. Stephens, No. 4:15-CV-852-O, ECF Nos. 6 & 7.

judgment on November 25, 2013, and the Texas Court of Criminal Appeals refused Petitioner’s pro
se petition for discretionary review. Id., Mem. Op. 9, ECF No. 14-4. The record does not indicate
that Petitioner sought writ of certiorari. Petitioner filed a state habeas-corpus application challenging
his conviction and raising the claims presented in this federal petition, which was denied without
written order by the Texas Court of Criminal Appeals on the findings of the trial court. Id., ECF Nos.
14-15. This federal habeas petition followed.
The appellate court set out the facts of the case as follows:
Appellant was arrested after Arlington Police Department officers stopped
him as he drove on Interstate 30 in heavy traffic between 4:00 and 5:00 in the
afternoon. Their attention was drawn to appellant by a 911 call from another
motorist, Rebecca Huff, who testified both at the suppression hearing and at trial.
Huff testified at trial that at 4:15 on an afternoon in January 2011, she was
driving on I-30 between Dallas and Grand Prairie, Texas. She was nearly struck from
behind by a grey Chevrolet Astro Van. She watched as the van swerved in and out
of traffic several times, sped up and slowed down numerous times, and nearly hit
another car. She thought the driver might be intoxicated and called 911 to report what
she saw.
Officer Jessica Burns with the Arlington Police Department responded to the
dispatch. She saw the van and Huff’s car following it. Officer Burns followed the
van, and also noted indicators that the driver was intoxicated, including his activating
the van’s right turn signal and swerving into the lane to the right then back into his
previous lane; braking for no apparent reason; and driving about 40 miles per hour
in a 60 mile-per-hour zone at a time when heavy traffic was moving much faster. The
officer also saw a pick-up swerve to avoid the van when it started to move into the
left-hand lane as the truck was passing.
Burns initiated a traffic stop, believing appellant was intoxicated and had
committed the offense of failing to maintain a single lane. When she approached the
vehicle, she saw appellant alone in the van. She noted the odor of alcohol on
appellant’s breath and his bloodshot eyes. When questioned about his driving,
appellant told the officer he was tired and having problems with his van.
A backup officer opened the sliding door of the van and a 24-ounce beer can
fell out of the van. Burns found another such can, about a quarter full, on the floor
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behind the driver’s seat. It was cold to the touch. Burns testified appellant balanced
himself against the van while waiting for officers. Burns also administered several
standard field sobriety tests, all of which appellant failed. The patrol car video was
introduced into evidence at trial and shown to the jury.
Appellant was arrested and taken to the hospital. His blood was drawn and
he admitted to another officer he had consumed four to six 24-ounce cans of beer that
day. His blood test showed his blood alcohol concentration level was 0.24, an amount
three times the level for intoxication.
Id., Mem. Op. 2-3, ECF No. 14-4.
II. ISSUES
Petitioner claims that the blood draw was illegally taken without a warrant pursuant to §
724.012(b)(3)(B) of the Texas Transportation Code,3 without his consent, and without exigent
circumstances, in violation of the Supreme Court decision in Missouri v. McNeely decided on April
17, 2013. 133 S. Ct. 1552 (2013) (holding that the dissipation of alcohol in the blood alone does not
constitute exigent circumstances justifying a warrantless blood draw from a drunk-driving suspect).
Thus, he asserts that (1) his trial counsel was ineffective by failing “to adequately litigate the Fourth
Amendment violation” and (2) his appellate counsel was ineffective by failing “to adequately raise
3

Under § 724.012(b)(3)(B),

(b) A peace officer shall require the taking of a specimen of the person’s breath or blood
under any of the following circumstances if the officer arrests the person for an offense under Chapter
49, Penal Code, involving the operation of a motor vehicle . . . and the person refuses the officer’s
request to submit to the taking of a specimen voluntarily:
...
(3) at the time of the arrest, the officer possesses or receives reliable information
from a credible source that the person:
...
(B) on two or more occasions, has been previously convicted or placed on
community supervision for an offense under Section 49.04 [DWI] . . . .
TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).

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the illegal blood draw violation in the appropriate venue.” Pet. 6, ECF No. 1.
III. RULE 5 STATEMENT
Respondent does not believe that the petition is barred by successiveness, the statute of
limitations, or a failure to exhaust state court remedies. (Resp’t’s Answer 5, ECF No. 13.)
IV. 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 (2011); 28 U.S.C. § 2254(d)(1)–(2). This standard is difficult to meet
and “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.
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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. Townsend v. Sain, 372 U.S. 293, 314
(1963)4; 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). With these principles in mind, the Court addresses Petitioner’s claims.
B. Discussion
A criminal defendant has a constitutional right to the effective assistance of counsel at trial
and on a first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95
(1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744
(1967). An ineffective assistance claim is governed by the familiar standard set forth in Strickland
v. Washington. 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001)
(applying the Strickland standard to ineffective assistance claims against appellate counsel). 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 performance must
be highly deferential and every effort must be made to eliminate the distorting effects of hindsight.
Id. at 689.

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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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The Supreme Court recently set out in Harrington v. Richter the manner in which a federal
court is to consider an ineffective assistance 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. 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 claims was
contrary to or an objectively unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685, 69899 (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 raised his ineffective-assistance claims in his state habeas application, and lead trial
counsel responded, via affidavit, that she filed two pretrial motions to suppress challenging the
constitutionality of the stop and search of Petitioner’s van in an attempt to have all evidence, not just
the blood draw, suppressed, that Petitioner relies on law and cases that were rendered after his trial
“making his primary argument moot,” and that she reviewed controlling case law on the issue as part
of her decision making process. WR-83,871-01, Writ 69, ECF No. 14-16.
Under his first ground, Petitioner claims his trial counsel was ineffective by failing “to
adequately litigate the Fourth Amendment violation.” Pet. 6, ECF No. 1. Based on the record and

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counsel’s affidavit, the state habeas court found that counsel did not have the benefit of McNeely in
2011, and, applying the Strickland standard and relevant state law, entered the following legal
conclusions:
16.

McNeely was published in 2013.

17.

Prior to McNeely, some Texas courts appear to have agreed with the State’s
argument here and adopted the very per se rule that McNeely rejects.

18.

Applicant has failed to prove that counsel’s representation was deficient
because she did not make a claim that the blood draw was unconstitutional at
a time when case law held that it was not.

19.

Counsel’s motion to suppress was proper.
...

23.

Applicant has failed to prove that counsel’s representation fell below an
objective standard of reasonableness.

26.

Applicant has failed to show that there is a reasonable probability that, but for
the alleged acts of misconduct, the result of the proceeding would be different.

27.

Applicant has failed to prove that he received ineffective assistance of trial
counsel.

Id. at 83 (emphasis in original) (citations omitted). In turn the Texas Court of Criminal Appeals
denied the application without written order on the findings of the trial court. Accordingly, absent
evidence that an incorrect standard was applied, this Court may assume that the Court of Criminal
Appeals applied the Strickland standard to the facts of the case.
Petitioner asserts that counsel, with a doctorate of jurisprudence and being well versed in both
the U.S. Constitution and it’s Fourth Amendment, should have recognized an obvious Fourth
Amendment violation regardless of whether the state has “misinterpreted the law since its enactment.”
Pet’r’s Objection 2, ECF No. 16. This argument is disingenuous. Trial counsel cannot be deemed
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ineffective for failing to anticipate a case decided after his conviction. United States v. Fields, 565
F.3d 290, 296 (5th Cir. 2009). The Fifth Circuit has repeatedly held that “there is no general duty on
the part of defense counsel to anticipate changes in the law.” United States v. Fields, 565 F.3d 290,
294 (5th Cir. 2009). Rather, counsel is required to research facts and law and raise meritorious
arguments based on then-existing law or precedent. United States v. Conley, 349 F.3d 837, 841 (5th
Cir. 2003); Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir. 1997). In this case, the warrantless blood
draw was sanctioned, if not required, by state statute and then-controlling case law. Petitioner fails
to rebut the presumptive correctness of the state court’s factual findings with clear and convincing
evidence or demonstrate that the state courts’ application of Strickland was unreasonable.
Accordingly, Petitioner is not entitled to relief under his first ground.
Under his second ground, Petitioner claims appellate counsel was ineffective by failing “to
adequately raise the illegal blood draw violation in the appropriate venue.” On appeal, appellate
counsel raised two issues challenging (1) the sufficiency of the evidence to support Petitioner’s
conviction and (2) the trial court’s denial of Petitioner’s motion to suppress on the basis that the initial
detention was not supported by reasonable suspicion. Mem. Op. 3, ECF No. 14-4. According to
Petitioner, counsel’s failure to raise the obvious issue concerning the constitutionality of the
warrantless blood draw was deficient and resulted in the waiver of the claim on state habeas review.
The state habeas court found that because the issue of whether the blood draw was
unconstitutional was not raised at trial and preserved for appeal, there was a reasonable strategic basis
for appellate counsel not to raise the issue and that there was no evidence that a reasonable likelihood
existed that the outcome of the appeal would have been different but for counsel’s omission. WR83,871-01, 78, ECF No. 14-16. Based on its findings, and applying the Strickland standard and
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relevant state law, the state court entered the following legal conclusions:
35.

An attorney is prohibited from raising claims on appeal that are not founded
in the record.

36.

An attorney is under an ethical obligation not to raise frivolous issues on
appeal.

37.

Because the issue of whether the blood draw was unconstitutional was not
preserved for appeal, counsel properly did not raise the issue on direct appeal.
...

44.

There is a plausible basis in strategy for appellate counsel’s actions.
...

46.

Applicant has failed to prove that his appellate attorney’s representation fell
below an objective standard of reasonableness.
...

48.

Applicant has failed to show that there is a reasonable probability that the
result of the appellate proceeding would have been different had counsel
raised additional issues on direct appeal.

Id. at 86 (citations omitted).
Appellate counsel is not required to raise every conceivable argument urged by his client on
appeal, regardless of merit. Smith v. Robbins, 528 U.S. 259, 287-88 (2000). It is counsel’s duty to
choose among potential issues according to his judgment as to their merits and the tactical approach
taken. Jones v. Barnes, 463 U.S. 745, 749 (1983). This Court finds nothing unreasonable in the state
courts’ application of Strickland or in the state habeas court’s determination of facts in light of the
evidence. Petitioner has not shown that counsel provided deficient performance simply because his
claims failed on appeal. And, appellate counsel is generally not ineffective for failing to raise issues
not preserved for appeal. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990); United States v.
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Simmons, 142 F.3d 1279, 1998 WL 224564 at *2 (5th Cir. Apr. 21, 1998) (holding appellate counsel
was not ineffective by failing to raise arguments waived by defendant before the district court);
Phengsengkham v. United States, No. 2:10-CV-185, 2012 WL 3062232, at *10 (N.D. Tex. June 27,
2012), report and recommendation adopted, 2012 WL 3064128 (N.D. Tex. July 27, 2012); Garrett
v. Thaler, No. 4:09-CV-624-Y, 2010 WL 4623891, at *13 (N.D.Tex. Aug. 12, 2010), report and
recommendation adopted, 2010 WL 4623874 (N.D.Tex. Nov. 15, 2010). Petitioner fails to rebut the
presumptive correctness of the state court’s factual findings with clear and convincing evidence or
demonstrate that the state courts’ application of Strickland was unreasonable. Accordingly, Petitioner
is not entitled to relief under his second ground.
For the reasons discussed, Petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is DENIED. Further, because Petitioner has not made a substantial showing of the
denial of a constitutional right, a certificate of appealability is also DENIED.
SO ORDERED on this 8th day of June, 2017.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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