Davis v. Davis Director TDCJ-CID
Memorandum Opinion and Order: The court ORDERS that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied and that a certificate of appealability be, and is hereby denied. (Ordered by Judge John McBryde on 12/1/2017) (ewd)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT OURT
FOR THE NORTHERN DISTRICT OF T XAS
FORT WORTH DIVISION
DEC - I 20!7
LORIE DAVIS, Director,
Texas Department of Criminal
CLERK, U.S. DISTRICT COURT
•. By _ _ _ _-:::-------~
This is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 filed by petitioner, Deon Davis, 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 having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be denied.
The state court records reflect that in July 2012 petitioner
was indicted in Tarrant County, Texas, Case No. 1285104D, for
aggravated robbery with a deadly weapon, a first-degree felony.
(02State Habeas R.
55, doc. 18-12.) The indictment also included
'02State Habeas R." refers to the state court record of petitioner's
state habeas-corpus application No. WR-80,129-02; ''04State Habeas R.'' refers
to the state court record of his state habeas-corpus application No. WR80, 129-04.
a habitual-offender notice.
(Id.) On January 31, 2013, petitioner
entered an open plea of guilty to the offense and true to the
deadly-weapon allegation and habitual-offender enhancement, and
the trial court assessed his punishment at twenty-five years'
(Id.) On appeal, appellate counsel filed an Anders
brief asserting that there were no arguable grounds for appeal
and a motion to withdraw.
(Id. at 67.)
Petitioner filed a prose
response, but the appellate court agreed that the appeal was
wholly frivolous and without merit, granted counsel's motion, and
affirmed the trial court's judgment.
(Id. at 68.)
sought post-conviction state habeas relief by filing two state
habeas applications challenging his conviction and sentence. The
first application was denied by the Texas Court of Criminal
Appeals without written order on the findings of the trial court
and the second was dismissed as a successive application.
In four grounds for relief, petitioner claims the state
made "an erroneous ruling based upon false
documents in its claim of subsequent filing";
"failed to investigate unit mail room for factual
finding of contested subsequent filing";
"was biased [and] failed to adequately adjudicate
petitioner's claims that he was denied" his
constitutional rights; and
"was biased [and] failed to adequately adjudicate
petitioner's claim of ineffective assistance of
(Pet. 6-7, doc. 1.)
RULE 5 STATEMENT
Respondent does not believe that the petition is successive
but does reserve the right to raise the exhaustion and/or
procedural-default defenses in the event the court determines
that his claims are cognizable on federal habeas review.
(Resp't's Answer 4, doc. 16.)
Respondent asserts that all of petitioner's claims involve
alleged defects in the state habeas proceedings, which are not
cognizable in federal habeas review.
(Resp't's Answer 5-6, doc.
16.) It is well established that "infirmities in state habeas
proceedings do not constitute grounds for relief in federal
court." Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert.
527 U.S. 1056 (1999)
(citing cases). See also Nichols v.
69 F.3d 1255, 1275 (5th Cir. 1995)
("An attack on a state
habeas proceeding does not entitle the petitioner to habeas
relief in respect to his conviction, as it is an attack on a
proceeding collateral to the detention and not the detention
itself." (internal quotation marks and citations omitted)).
Under his first and second grounds, petitioner asserts that
he did not file the first state habeas application or authorize
"next of friend filing under
2254" and that the application is
a "false document." (Pet. 6, doc. 1; Pet'r's Mem. 2, doc. 2.) He
claims that the state habeas court refused to "investigate unit
mail room" and conduct a "factual finding hearing" to determine
if, in fact, he had filed the document.
(Pet'r's Mem. 2, doc. 2.)
Clearly, these claims allege infirmities in the state habeas
proceedings and are not cognizable on federal review. See Wiley
625 F.3d 199, 207
(5th Cir. 2010)
about state habeas court's denial of evidentiary hearing not
cognizable in federal court) .
Under his third and fourth grounds, petitioner claims the
state habeas court was biased and failed to adequately adjudicate
the claims--i.e., reach the merits of the claims, raised in his
second state habeas application by improperly dismissing the
application as successive.
(Pet. 7, doc. 1; Pet' r's Mem. 8-11.)
Clearly, these claims also allege infirmities in the state habeas
proceedings and are not cognizable on federal habeas review.
Federal habeas relief cannot be had absent the allegation by a
petitioner that he has been deprived of some right secured to him
by the United States Constitution or the laws of the United
States. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). The
state ruling denying petitioner the opportunity to file further
writs of habeas corpus was not a denial of his constitutional
rights because the state is under no constitutional obligation to
provide post-conviction remedies. Millard v. Lynaugh, 810 F.2d
1403, 1410 (5th Cir. 1987).
For the reasons discussed herein,
The court ORDERS that the petition of petitioner for a writ
of habeas corpus pursuant to 28 U.S.C.
2254 be, and is hereby,
denied and that a certificate of appealability be, and is hereby
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