Reed v. Stephens
Filing
18
Memorandum Opinion and Order: The court ORDERS that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a substantial showing of the denial of a constitutional right. (see order for specifics) (Ordered by Judge John McBryde on 7/20/2017) (mpw)
U.S. DISTRICT COURT
NORTIIERN DISTRICT OF TEXAS
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IN THE UNITED STATES DISTRICT C
FOR THE NORTHERN DISTRICT OF T
FORT WORTH DIVISION
JUl 2 0 2017
CLERK, V.3. :V10Tl~C ... Cvukr
By
LADARIUS REED,
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§
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§
Petitioner,
§
§
v.
§
No. 4:16-CV-103-A
§
LORIE DAVIS, Director, 1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.
§
2254 filed by petitioner, Ladarius Reed, a state
prisoner incarcerated in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ) , against Lorie
Davis, director of TDCJ, respondent. After having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be denied.
I. Procedural History
In August 2012 petitioner was indicted in Tarrant County,
Texas, Case No. 1287601D, on two counts of aggravated robbery
1
Effective May 4, 2016, Lorie Davis replaced William 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.
with a deadly weapon.
(Clerk's R. at 2.) Petitioner's jury trial
commenced on January 30, 2013, at the conclusion of which the
jury found petitioner guilty of both counts and true to the
repeat-offender notice in the indictment and assessed his
punishment at 26 years' confinement on count one and 15 years'
confinement on count two.
(Id. at 77, 80.) The Second District
Court of Appeals of Texas affirmed the trial court's judgment on
appeal.
(Docket Sheet at 1.) Petitioner did not file a petition
for discretionary review in the Texas Court of Criminal Appeals,
but he did file two relevant postconviction habeas-corpus
applications challenging his convictions, which the Texas Court
of Criminal Appeals denied without written order on the findings
of the trial court.
The state appellate court summarized the background facts of
the case as follows:
On June 20, 2012, Nathan Tumanuvao and his
girlfriend, Christina Lee, agreed to meet Tumanuvao's
friend Danny Farmer in a McDonald's parking lot in
Arlington to purchase a gun. Tumanuvao drove Lee's car
to the parking lot and waited for Farmer. Around 11:00
p.m., Farmer and Appellant, whom neither Tumanuvao nor
Lee had met before, arrived at the parking lot and got
into Lee's car. Farmer sat in the back seat behind Lee,
and Appellant sat behind Tumanuvao. Tumanuvao greeted
Farmer and then asked, "Can I see [the gun]?" Appellant
then pointed the gun at Tumanuvao's head and said, "Run
it, I want everything, give me everything you have."
Tumanuvao asked Farmer, "[W]hat's wrong with your
2
friend?" Appellant said, "[E]verybody shut up,
everybody-I'm going to kill everybody in this car."
Tumanuvao exited the car. He tried holding the
rear driver side door shut so that Appellant could not
get out of the car. Appellant kicked the door open,
knocking Tumanuvao to the ground. Appellant got out of
the car and shot Tumanuvao in the stomach. Appellant
and Farmer then ran off.
Lee went to call 911 and found that her phone was
not in the car. She found someone in the drive-through
lane at the McDonald's who called 911 for her. The
police arrived, and Tumanuvao was taken to the
hospital. Tumanuvao underwent emergency surgery, but
doctors were not able to remove the bullet. Lee went
with police detectives to the police station to give
her statement and to view some lineups. She identified
Farmer from one lineup.
The next morning, Lee got on Facebook to see if
she could identify any of Farmer's friends as the
shooter. She saw Appellant's picture under the name
"Markey Reed." She called a police detective, gave ~im
the name, and agreed to return to the police station to
view another lineup. She identified Appellant from that
photo lineup.
(Mem. Op. at 1-3.)
II. Issues
In four grounds, petitioner raises the following claims:
(1)
He received ineffective assistance of trial
counsel because counsel failed to inform him that
there was a deadline on the 15-year plea bargain
deal;
(2)
The trial court failed to give him an opportunity
to allocution;
(3)
He received ineffective assistance of trial
3
------------------------.
counsel because counsel failed to inform him that
he had the right to address the jury prior to
sentencing through the procedure of allocution;
and
(4)
He received ineffective assistance of trial
counsel because counsel failed to advise him that
he had the right to have character witnesses
testify on his behalf at trial.
(Pet. at 6-7.)
III. Rule 5 Statement
Respondent does not believe that the petition is time-barred
or subject to the successive-petition bar, however she asserts
that one or more of petitioner's claims are unexhausted and/or
procedurally barred as to one or both convictions.
Answer at 5 - 6 . ) 2 8 U. S . C .
§§
2 2 4 4 (b) ,
(d)
&
(Resp't's
2 2 54 (b)
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. 28
4
U.S.C.
§
2254(d) (1)-(2); Harrington v. Richter, 562 U.S. 86, 100-
01 (2011). 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). Further, when the Texas Court of Criminal
Appeals denies a federal claim in a state habeas-corpus
application without written opinion, a federal court may presume
"that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to
the contrary" and applied the correct "clearly established
federal law, as determined by the Supreme Court of the United
States" unless there is evidence that an incorrect standard was
applied, in making its decision. Johnson v. Williams, 568 U.S.
5
289, 298
(2013); Harrington, 562 U.S. at 99; Schaetzle v.
Cockrell, 343 F.3d 440, 444
(5th Cir. 2003).
B. Right to Allocution
Under his second ground, petitioner claims that the trial
court failed to give him an opportunity to allocution before the
jury (Pet. at 2.) Petitioner raised this claim in his state
habeas-corpus application attacking his conviction and sentence
under count one.
(03SHR at 9, 23-24. 2 ) The state court
recommended denial of the claim because the claim was a "record
claim" that should have been, but was not, raised on direct
appeal and was thus not cognizable on state habeas review.
(Id.
at 64.) Under the procedural-default doctrine, a federal court
may not consider a state prisoner's federal habeas claim when the
last state court to consider the claim expressly and
unambiguously based its denial of relief on an independent and
adequate state procedural default. Coleman v. Thompson, 501 U.S.
722, 729 (1991); Johnson v. Puckett, 176 F.3d 809, 823
(5th Cir.
1999); Fisher v. State, 169 F.3d 295, 300 (5th Cir. 1999). The
state court clearly relied upon a firmly established and
regularly followed state procedural rule to recommend denial of
2
"03SHR" refers to the documentary record of petitioner's state habeascorpus application in No. WR-81,729-03; "02SHR" refers to the documentary
record of his state habeas-corpus application in No. WR-81,729-02.
6
the claim. Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App.
1996); Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989)
(holding uthe Great Writ should not be used to litigate matters
which should have been raised on appeal"). Therefore, absent a
showing of cause and prejudice or a miscarriage of justice, such
showing not having been demonstrated by petitioner, his second
ground is procedurally barred from this court's review. 3
C. Ineffective Assistance of Counsel
Petitioner was represented at trial by Gary Don Smart.
Petitioner asserts counsel was ineffective by (1) failing to
inform him that there was a deadline on the 15-year plea bargain
deal;
(2) failing to inform him that he had the right to address
the jury prior to being sentenced through the procedure of
allocution; and (3) failing to advise him that he had the right
3
Even if the claim were not procedurally barred, petitioner would not be
entitled to relief. There is no constitutional right to allocution under the
United States Constitution. See Hill v. United States, 368 U.S. 424, 428-29
(1962) (addressing whether failure to comply with similar federal statute
entitled defendant to collateral habeas relief); United States v. Hall, 152
F.3d 381, 392-96 (5th Cir. 1998) (discussing similar federal statutory and
common law right of allocution), abrogated on other grounds by United States
v. Martinez-Salazar, 528 U.S. 304 (2000)). And, from this record, it appears
the trial court fulfilled its obligation under Texas Rules of Criminal
Procedure article 42.07. TEx. R. CRIM. PRoc. ANN. art. 42.07 (West 2006). Before
imposing petitioner's sentence, the trial court asked, ~rs there any reason
why the defendant should not be sentenced at this time," and Petitioner's
trial counsel replied, ~No, Your Honor." Nor does petitioner allege or
demonstrate that any of the statutory reasons set out in article 42.07 to
prevent the pronouncement of sentence existed in his case.
7
to have character witnesses testify on his behalf at trial.
(Pet.
at 6-7.)
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. CaNsT. amend. VI,
XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); 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. 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.
The Supreme Court emphasized in Harrington v. Richter the
manner in 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
8
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, 529 U.S. at 410)).
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) i Kittelson
v. Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005) i Schaetzle, 343
F.3d at 443.
In response to petitioner's allegations, counsel filed an
affidavit in the state habeas-corpus proceedings, in which he
states, in relevant part, as follows:
Mr. Reed is correct that I did not inform him that
there was a deadline on the 15 year plea bargain offer.
However, there was not a deadline put on the offer by
the prosecutor. As the record reflects, there was a
hearing before trial concerning this issue. The Judge
made the finding that Mr. Reed rejected the offer. When
I met with Mr. Reed on January 24, I called the
prosecutor while I was in the attorney booth with the
[sic] Mr. Reed. She made a 15 year offer at the time. I
conveyed the offer to Mr. Reed. He wanted 10 years. The
9
prosecutor would not offer 10 years. Mr. Reed rejected
the 15 year offer and got up and walked out of the
attorney booth at the jail. On January 30th the day of
trial, Mr. Reed said he would take 15 years. However,
the prosecutor would not offer 15 years and the offer
was now 20 years. There was never a deadline put on any
offers. Thus, there were never deadlines conveyed to
Mr. Reed.
Mr. Reed was informed both at the end of the
guilt/innocence phase and the punishment phase that he
had an absolute right to testify. I explained to him
that the prosecutor would have the opportunity to cross
examine him. We discussed what questions she could ask
him about the facts of the case, his back ground and
criminal history. I gave him my opinion that I did not
think he would benefit from him testifying at either
stage of the trial. Mr. Reed made the choice not to
testify.
Mr. Reed knew we were going to trial. He had
signed status conference paper work on January 11,
2013. That paper work tells the defendant when his case
is set for trial. I had been to see him January 24, 28
and 30th in preparation for trial. Even though I was
still pursuing plea bargain offers, we were still
preparing for trial and going over witness lists,
witness statements, lineups and notices the State had
sent. Mr. Reed's mother was asked on January 31 to
testify and she told me she did not want to testify.
There were no other family members or character
witnesses for me to call. Mr. Reed was not cooperative
with me or my investigator in trying to prepare his
case for trial. His position from the start was "I
don't know anything about the offense." If Mr. Reed
would have given me or my investigator's [sic] names of
character witnesses, we would have interviewed and
subpoenaed them to court.
10
(03SHR at 50.)
Based on counsel's affidavit and the documentary record of
the trial proceedings, the state submitted the following proposed
findings of fact regarding Petitioner's claims, which were
adopted by the state habeas court:
5.
Hon. Smart did not advise Applicant that there was
a deadline on the State's plea bargain offer
because there was not one.
6.
The State's fifteen year plea offer was off the
table because Applicant rejected it by making a
counter-offer and not because the offer had
expired.
7.
Hon. Smart's advice was the result of reasonable
trial strategy.
8.
There is no evidence that the outcome of the
proceeding would have been different had counsel
advised him differently.
9.
Hon. Smart advised Applicant that he had a right
to testify.
10.
Hon. Smart advised Applicant that he would be
subject to cross-examination if he testified.
11.
Hon. Smart discussed with Applicant the questions
the prosecutor would ask him, including regarding
the facts of the case, his background, and
criminal history.
12.
Hon. Smart advised Applicant it would not benefit
him to testify.
13.
Applicant chose not to testify.
14.
Hon. Smart's advice was the result of reasonable
11
trial strategy.
15.
There is no evidence that the outcome of the
proceeding would have been different had counsel
advised him differently.
17.
Applicant's mother was asked to testify but she
declined.
18.
Hon. Smart was not aware of any other family
members or character witnesses to call.
19.
Hon. Smart advised Applicant that he could testify
on his own behalf.
20.
There is evidence that Hon. Smart advised
Applicant of his right to present witnesses.
21.
Applicant was not cooperative with Hon. Smart or
his investigator.
22.
If Applicant had given Hon. Smart or his
investigator the names of character witnesses,
Hon. Smart or his investigator would have
interviewed and subpoenaed them.
23.
Applicant presents no evidence, statements, or
affidavits from witnesses who counsel should have
called to testify as character witnesses.
24.
Hon. Smart's advice regarding testimony and
character witnesses was the result of reasonable
trial strategy.
25.
There is no evidence that the outcome of the
proceeding would have been different had counsel
interviewed more character witnesses.
26.
There is no evidence that the outcome of the
proceeding would have been different had counsel
subpoenaed more character witnesses.
12
34.
Before pronouncing sentence, the trial court
inquired, "Is there any reason why the defendant
should not be sentenced at this time?"
35.
When asked if there was any reason not to be
sentenced, Applicant's counsel stated, "No."
36.
Applicant did not object to the court pronouncing
sentence.
(Id. at 55-58, 70 (record citations omitted).)
Based on those findings, and applying Strickland and
applicable state law, the state habeas court entered the
following legal conclusions:
7.
Counsel properly advised Applicant regarding the
plea offer.
8.
Article 42.07 of the Texas Code of Criminal
Procedure does not allow for a defendant to
address the jury prior to being sentenced.
9.
Article 42.07 of the Texas Code of Criminal
Procedure does not allow for a defendant to
address the jury prior to being sentenced.
10.
"The limitations of [article 42.07] are designed
to allow the defendant to bring to the court's
attention legal bars to the imposition of
punishment that may not be of record, specifically
including a pardon, incompetency, and mistaken
identity."
11.
Applicant has failed to prove that counsel's
representation was deficient because he did not
inform Applicant of a right to address the jury,
without being subjected to cross-examination,
because he did not have the right.
13
12.
Applicant has failed to prove that counsel's
representation was deficient because he did not
request that Applicant be allowed to address the
jury without being subjected to cross-examination.
13.
Counsel properly advised Applicant that he could
testify at trial.
14.
Counsel properly advised Applicant that he could
call character witnesses at trial.
16.
Applicant has failed to prove that counsel's
representation fell below an objection standard of
reasonableness.
19.
Applicant has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different had counsel
advised him differently.
20.
Applicant has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different had counsel
requested that Applicant be able to address the
jury without being subjected to cross-examination.
22.
Applicant has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different but for the
alleged misconduct.
23.
Applicant has failed to prove that he received
ineffective assistance of trial counsel.
(Id. at 62-63 (citations omitted).)
The Texas Court of Criminal Appeals, in turn, denied relief
14
based on the state habeas court's findings. Petitioner has not
presented clear and convincing evidence in rebuttal. Thus,
relying on the presumptive correctness of the state courts'
factual findings,
in conjunction with the state court records,
the state courts' adjudication of petitioner's ineffectiveassistance claims comports with Strickland.
A petitioner shoulders a heavy burden 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
presents 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. 28
U.S.C.
§
2254(d). His claims are conclusory, refuted by the
record, and/or would have required counsel to make frivolous
motions or objections, all of which generally do not entitle a
state petitioner to federal habeas relief. See, i.e., United
States v. Jackson, 549 F.3d 963, 980 (5th Cir. 2008)
United States v. Hall,
(following
supra note 3, that there is no
constitutional right to submit an unsworn statement of allocution
to the jury that is not subject to cross-examination); Johnson v.
15
Cockrell, 306 F.3d 249, 255 (5th Cir. 2002)
(concluding that
counsel is not required to make futile motions or frivolous
objections); Green v. Johnson, 160 F.3d 1029, 1037, 1042 (5th
Cir. 1998)
("[m]ere conclusory allegations in support of a claim
of ineffective assistance of counsel are insufficient to raise a
constitutional issue" and "counsel is not required to file
frivolous motions or make frivolous objections"); Alexander v.
McCotter,
775 F.2d 595, 602 (5th Cir. 1985)
(ineffective
assistance claims based upon uncalled witnesses are disfavored
and conclusory if unsupported by affidavits indicating the
witnesses' willingness and availability to testify and the
substance of the proposed testimony). Petitioner is not entitled
to relief.
For the reasons discussed herein,
The court ORDERS that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
denied. The court further ORDERS that a certificate of
appealability be, and is hereby, denied, as petitioner has not
16
made a substantial showing of the denial of a constitutional
right.
SIGNED July
2017.
JUDGE
17
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