Hart v. Davis-Director TDCJ-CID
Filing
11
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. (Ordered by Judge John McBryde on 3/20/2018) (edm)
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
FALLON WAYNE HART,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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OURT
EXAS
MAR 2 0 201fl
No. 4:16-CV-874-A
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.
§
2254 filed on behalf of petitioner, Fallon Wayne
Hart, 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
On April 28, 2013, in Hood County, Texas, Case No. CR12428,
petitioner entered guilty pleas in open court to three counts of
aggravated assault of a public servant by threat with a deadly
weapon, a firearm.
(Clerk's R. 7; Reporter's R., vol. 2, 5.)
Following a jury trial on punishment, the jury assessed his
punishment at 99 years' confinement in TDCJ on each count.
(Id.
at 32, 37, 40.)
Petitioner appealed, but the Seventh District
Court of Appeals of Texas affirmed the trial court's judgment and
the Texas Court of Criminal Appeals refused his petition for
discretionary review. Petitioner also filed a state
postconviction application for writ of habeas corpus challenging
his conviction, which was denied by the Texas Court of Criminal
Appeals without written order on the findings of the trial court.
(SHR,
1
Action Taken.) This federal petition for habeas-corpus
relief followed.
Petitioner was charged with the offenses as a result of an
incident that occurred in the early morning hours on January 21,
2013. At approximately 3:30 a.m. Granbury police officer Michael
Holly observed a suspicious vehicle new Lake Granbury. There were
two people in the vehicle, petitioner and Kristin Bishop. Officer
Holly ran a driver's license check on both individuals and
learned that petitioner had an outstanding warrant for a weapon
charge in Taylor County, which contained a warning that
petitioner was "armed and dangerous.u Granbury police officer
Zachary Anderson and Hood County sheriff's deputy Dustin Holden
arrived to assist Holly. Petitioner refused to get out of the
vehicle and eventually put it in gear and drove off. The officers
pursued him into a housing subdivision where petitioner
1"SHRu refers to the state court record of petitioner's state habeas
proceeding in WR-85,102-01.
2
ultimately crashed the vehicle. Officer Anderson was the first to
locate the vehicle. As Anderson radioed in that he had found the
vehicle, petitioner opened fire on Anderson's police vehicle with
a AR-15 semiautomatic assault rifle. Anderson survived without
injury.
Petitioner, now on foot,
broke into a home nearby, held
the residents at gun point, and demanded their car keys.
Petitioner fled in the residents' truck and as he drove past the
officers, he fired another shot toward them. Petitioner was
located hours later in a creek bed and arrested.
(Resp't's Answer
3-6; Reporter's R., vol. 3, 13-23.)
II.
ISSUES
In two grounds, petitioner asserts that his trial counsel
was ineffective because (1) he had a conflict of interest,
simultaneously representing both petitioner and Kristin Bishop,
his co-arrestee, and (2) he failed to object to the bailiff's
order that none of petitioner's supporters could sit in the
gallery behind the defense table.
(Pet. 6, 8.)
III. RULE 5 STATEMENT
Respondent believes that the petition is timely filed, that
the petition is not subject to the successive-petition bar, and
that petitioner has exhausted his state-court remedies as to his
claims.
(Resp't' s Answer 6.) 28 U.S.C.
2254 (b) (1).
3
§§
2244 (b),
(d)
&
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
8ffective Death Penalty Act (A8DPA). 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
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.
Cockrell,
2254(e) (1); Miller-El v.
§
537 U.S. 322, 340 (2003); Williams v.
Taylor,
529 U.S.
362, 399 (2000). Further, when the Texas Court of Criminal
4
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 contraryu and applied the correct "clearly established
federal law, as determined by the Supreme Court of the United
Statesu unless there is evidence that an incorrect standard was
applied, in making its decision. Johnson v. Williams, 568 U.S.
289, 298
(2013); Harrington, 562 U.S. at 99; Schaetzle v.
Cockrell, 343 F. 3d 440, 444
(5th Cir. 2003).
Because petitioner fails to present clear and convincing
evidence rebutting the state habeas court's factual findings,
this court defers to those findings in the discussion below. 28
U.S.C.
§
2254 (e) (1).
B. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial. 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. In applying this
test, a court must indulge a strong presumption that counsel's
5
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.
Ineffective-assistance-of-counsel claims are considered
mixed questions of law and fact and, therefore, are analyzed
under the "unreasonable application" standard of§ 2254(d) (l)
See Gregory v.
Thaler, 601 F. 3d 347, 351 (5th Cir. 2010). Where,
as here, the state courts have adjudicated the ineffectiveassistance claims on the merits, this court must review
petitioner's claims under the "doubly deferential" standards of
both Strickland and§ 2254(d). Cullen v. Pinholster, 563 U.S.
170, 190 (2011). In such cases, the "pivotal question" for this
court is not "whether defense counsel's performance fell below
Strickland's standard"; it is "whether the state court's
application of the Strickland standard was unreasonable."
Richter, 562 U.S. at 101. See also id. at 105 ("Establishing that
a state court's application of Strickland was unreasonable under
§ 2254(d)
is all the more difficult. The standards created by
Strickland and§ 2254(d) are both 'highly deferential,' and when
the two apply in tandem, review is 'doubly' so." (internal
citations omitted)).
Petitioner first claims that his trial counsel Richard
6
Haddox was ineffective because of his simultaneous representation
of both himself and Kristin Bishop.
(Pet. 6) Petitioner asserts
that had Bishop, who was also arrested, been called to testify at
his trial, she would have "provided powerful mitigating
evidence." According to petitioner, counsel did not call Bishop
to testify so that she would not incriminate herself and the
state would drop the charges against her.
(Id.;
Pet'r's Mem. 12.)
In support, petitioner presented the affidavits of his mother and
step-father in the state habeas proceedings, wherein they aver
that counsel did not inform them of the conflict of interest in
representing both petitioner and Bishop on charges arising out of
the same incident.
(SHR 56-57.) He also presented Bishop's
affidavit, wherein she states:
I was arrested in Hood County, Texas, with Fallon
Hart on January 21,2013. I sought out local counsel to
assist in my defense. I hired attorney Richard Hattox
to represent me. I also asked if he would represent
Fallon Hart. He agreed, but did not say anything to me
about a conflict of interest. He did a good job on my
case. I was only charged with drug possession and he
got the case dismissed. I asked him if I could testify
for Fallon Hart. He told me "no" and said I would be
arrested if I did so.
Had I been permitted to testify at Fallon Hart's
trial, I would have appeared and told the jury that
Fallon did not intend to hurt or kill anyone. Fallon
suffers from a bipolar disorder. We had been using
methamphetamine for several days before our arrest. The
drugs made Fallon seem paranoid. He was acting insane.
He threw my cell phone away and said I was a traitor. I
think he was hallucinating, and he had suffered similar
hallucinations the previous day and on earlier
occasions.
7
When he was stopped by the police, he just snapped
I don't know if he was even aware the police were
there. He stopped the car, then he ran off. He was
running and firing behind him. He thought he was
protecting me. He returned shortly. Immediately after
he was arrested he expressed remorse to me about what
happened.
This conduct is not like the Fallon Hart I know.
He is a good parent and very generous person with a
good heart. He is very charismatic and is a good
salesman. However, he had recently lost his job and his
father was terminally ill. His car had burned up a few
days before and he had lost his most prize personal
possessions. These things made him distraught.
I think his sentence was too harsh and if I had
testified I believe my testimony would have helped the
jury understand how the event happened, that Fallon's
actions were on account of the drugs, and what kind of
person Fallon really is.
(SHR 59-60.)
In his own affidavit, counsel responded to the allegation as
follows:
I am board certified in criminal law and have been
a member of the Bar in Texas since May of 1985. I
served as the elected District Attorney for the 355th
Judicial District for sixteen (16) years and have
served as a County Court at Law Judge.
On January 29,2013, I was called by Cindy Bishop.
She requested that I represent her daughter, Kristin
Bishop, who was under arrest in Hood County. Over the
telephone, I was paid a retainer fee of $1,500.00.
After checking local records, Kristin Bishop was
arrested for a misdemeanor marijuana charge. Later that
day, a detainer was placed upon her by the State of
Virginia. I counselled with Granbury Police Department
detective, Russ Grizzard and the County Attorney, Lori
Kasper.
The following day John Nel, an attorney from
Virginia, contacted me. Mr. Nel requested that Ms.
Bishop waive extradition and voluntarily return to
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Virginia and bond out on local charges. After
consultation, I agreed. Our County Attorney declined to
prosecute the misdemeanor marijuana possession offense.
Upon consultation with John Nel, extradition was duly
waived. Ms. Bishop was not charged with any offense
arising out of [petitioner]'s offense. The only contact
this attorney had with Ms. Bishop was at the waiver
hearing. No discussion was had with her regarding
[petitioner]'s case.
On February 21, 2013, Jaye Howell reported that
she was [petitioner]'s mother. Mrs. Howell paid a
retainer and hired counsel to represent [petitioner]. A
review of the investigation records indicated that Ms.
Bishop was present when [petitioner] committed his
offenses and reported that she had been with him for an
extended time. Ms. Bishop reported to the investigator
that she could not report where she and [petitioner]
had been. She stated that [petitioner] had been
arrested two (2) weeks before for weapon crimes and
that he had been in possession of several weapons
(including the one used in the instant offense) and
that she could not remember any details.
I counselled with [petitioner] and Ms. Howell
regarding the assistance I had provided to Ms. Bishop.
Both of them concurred that the right decisions had
been made on her behalf. At no time did the State ever
inform trial counsel that Ms. Bishop was a target of
the investigation with [petitioner]. During
[petitioner]'s confinement, all of his mail and
correspondence was monitored. I personally cautioned
[petitioner] regarding this lack of privacy. Despite my
warnings, he began corresponding with Ms. Bishop
regarding a "plan" and actively enlisted her assistance
in getting several male friends of his to aid in his
plan. These letters spoke of flawless plans and the
need for several people to assist. They were clearly
written to circumvent the jail staff's efforts to
determine what the plan was going to be.
On September 9, 2013, Officer Churchwell
transported [petitioner] to a local dentist for
treatment. These dental treatments were requested by
[petitioner]'s mother, Jaye Howell. She demanded that
these visits occur with this particular dentist. After
leaving the dentist's office, [petitioner] attempted to
confiscate the officer's gun and physically assaulted
9
her. [Petitioner] did not escape and the officer had
minor injuries.
District Attorney, Rob Christian, through
discovery, alleged that [petitioner], Ms. Bishop and
others were complicit in a plan for [petitioner] to
escape from custody. [Petitioner]'s letters were
provided, to me, through such discovery. Mr. Christian
disclosed telephone recordings of cryptic escape plans
between [petitioner] and Ms. Bishop. I described these
events to [petitioner] and Mrs. Howell in October of
2013, both in person and by telephone.
I was of the opinion that any evidence of an
escape plan would be admitted against [petitioner] in
his trial. I reported to [petitioner] and Mrs. Howell
that if we called Ms. Bishop as a witness, the State
could enter each and all of these letters as evidence
of such a conspiracy. Without her testimony, the State
would not be allowed to enter these letters because
they could not authenticate them.
Before the trial, [petitioner] reported that he
had discovered that Ms. Bishop was unfaithful to him.
Mr. Hart had written to her cursing her and calling her
vulgar names and ended the relationship. It was evident
from my discussions with [petitioner] that Ms. Bishop
would testify, if called as a witness, that the two of
them had been doing an extraordinary amount of drugs
for several weeks, had broken many laws including auto
thefts, burglaries and weapon offenses. [Petitioner]
desired to minimize his punishment for the instant
offense because he was "on drugs" at the time of the
offense and wanted Ms. Bishop to confirm that.
I was personally of the opinion that the benefits
of having Ms. Bishop testify far outweighed any benefit
such testimony could provide. I disagreed that a jury
might, in any way, excuse [petitioner]'s offense
because of his voluntary intoxication on drugs. I knew
the State would introduce [petitioner]'s efforts to
orchestrate an escape attempt and couple it with the
attack upon Officer Churchwell. I believed the letters
were supportive of such an allegation when so joined
with [petitioner]'s actions.
I believed it likely that the trial court would
not have allowed Ms. Bishop to testify upon seeing
10
those letters, without legal representation, out of
respect for her rights to not incriminate herself or
perjure herself before the court.
[Petitioner] agreed with me that Ms. Bishop would
do more harm than good and [petitioner] told me that
she was an "airheadu, a heroin addict, not trustworthy
and was totally unreliable.
[Petitioner]'s mother concurred with all the
above, upon disclosing to her of the communications
between [petitioner] and Ms. Bishop.
Ms. Bishop's mother, on several occasions,
reiterated that Ms. Bishop would refuse to testify if
called as a witness. Ms. Bishop remained incarcerated
in Virginia. I was of the opinion, that Ms. Bishop's
testimony would be adverse to my client's case.
[Petitioner], Mrs. Howell and Ms. Bishop's mother all
agreed. Therefore, as a matter of trial strategy, Ms.
Bishop was not called to testify on [petitioner]'s
behalf upon careful consideration and consultation.
(Supp. SHR 13-16.)
Under state law, an "actual conflict of interestu exists if
counsel is required to make a choice between advancing his
client's interests in a fair trial or advancing other interests
to the detriment of his client's interests.
(Id. at 21.) The
state habeas judge, who also presided at petitioner's trial,
credited counsel's testimony concerning the status of his
professional relationship with Bishop and entered factual
findings consistent with counsel's affidavit.
(Id. at 18-19.)
Based on those findings, and applying the Strickland standard,
the court concluded that, in light of the totality of counsel's
representation, petitioner failed to demonstrate the existence of
an actual conflict of interest or that counsel's decision not to
11
call Bishop as a witness was "outside of the prevailing norm of
sound trial strategy" and recommended that petitioner's
application be denied.
(Id. at 20-22.) In turn, the Texas Court
of Criminal Appeals adopted those factual findings and denied
petitioner's application without written order.
2
(Id. at 20-21.)
A state trial court's credibility determinations made on the
basis of conflicting evidence are entitled to a strong
presumption of correctness and are "virtually unreviewable" by a
federal court. Moore v. Johnson, 194 F.3d 586, 605 (5th Cir.
1999)
(citing Marshall v. Lonberger, 459 U.S. 422, 432
(1983))
It is clear the state habeas court found counsel's affidavit
credible. This court may not reevaluate the conflicting
affidavits or the credibility of the affiants. Thus, applying the
appropriate deference to the state courts' factual findings and
credibility determinations, the state courts' application of
Strickland was not unreasonable.
Petitioner also claims that counsel was ineffective by
failing to object to the trial court's refusal to allow his
supporters to sit behind him at trial.
(Id. at 8.) Counsel
2After the case was returned to the Texas Court of Criminal Appeals,
petitioner filed objections to the habeas judge's order recommending denial
and, in an apparent attempt to refute counsel's affidavit, included additional
affidavits by him and his mother. {Resp't's Exs. 12, 14, 15.) There is no
indication that the Texas Court of Criminal Appeals considered the affidavits
on their merits. Therefore, this court assumes that the late-filed materials
were not and, thus, are unexhausted for purposes of§ 2254(b) (1) (A). See Wheat
v. Johnson, 238 F. 3d 357, 360-61 (5th Cir. 2001). Absent a showing of cause
and prejudice, such showing not have been demonstrated by petitioner, this
court is barred from considering the additional affidavits. See Coleman v.
Thompson, 501 U.S. 722, 748-50 (1991).
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responded to this claim as follows:
Because of the security considerations, the State
had extra security personnel in the building when the
trial was conducted. There were extra security and
bailiffs present in the courtroom during the trial. It
was reported to me that spectators were not allowed to
sit in proximity to [petitioner] during the trial. I
perceived these circumstances were warranted out of
security concerns that the bailiff had considered.
Accordingly, I did not object. However, my client nor
any observer during the trial, claimed to me that they
believed the placement of the audience was adverse to
my client. Witnesses were not allowed in the courtroom
during the trial until they had testified, in
accordance with the court's rulings. I can recall no
one complaining to me of their placement other than
[petitioner]'s mother and she was a witness in the
case. No participant in the trial argued these
circumstances to the Jury, nor was any attention drawn
to it by the State. Trial Counsel did not object to the
Bailiff's directions to leave the area adjacent to
[petitioner]'s location vacant and did not consider it
prejudicial to [petitioner]'s defenseu.
(Supp. SHR 16.)
Under state law, a trial court has broad discretion to
control the orderly proceedings in the courtroom.
(Id. at 21.)
The state habeas court entered factual findings consistent with
counsel's affidavit and, applying the Strickland standard,
concluded that, in light of the totality of counsel's
representation, counsel's decision not to object to the
precautionary measure "was not outside the prevailing norm of
sound trial strategy.u (Id.) The Texas Court of Criminal Appeals,
likewise, denied relief based on the habeas court's findings.
Strategic decisions by counsel are virtually unchallengeable
and generally do not provide a basis for habeas-corpus relief on
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the grounds of ineffective assistance of counsel. Knowles v.
Mirzayance, 556 U.S. 111, 124
(2009). In petitioner's case, the
additional security precautions in the courtroom were justified
given his previous attempt to escape with the help of supporters
on the outside. Counsel is not ineffective by failing to make
frivolous or futile objections. Koch v. Puckett, 907 F.2d 524,
527
(5th Cir. 1990). Thus, applying the appropriate deference to
the state courts' factual findings, the state courts' application
of Strickland was not unreasonable.
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
made a substantial showing of the denial of a constitutional
right.
SIGNED March
?- 6 , 2018.
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