Burnett v. Thaler

Filing 12

MEMORANDUM AND ORDER OF DISMISSAL GRANTING 11 MOTION for Summary Judgment. Petition for Writ of Habeas Corpus is DENIED. The Court WILL NOT issue COA.(Signed by Judge Kenneth M. Hoyt) Parties notified.(dwilkerson, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
CHARLES WAYNE BURNETT,
Petitioner,
VS.
RICK THALER,
Respondent.

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§ CIVIL ACTION NO. G-10-149
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MEMORANDUM AND ORDER OF DISMISSAL
The petitioner, Charles Wayne Burnett (#1476498), seeks habeas corpus relief under 28
U.S.C. § 2254, challenging a 2008 state felony conviction of possession of a controlled substance
with intent to deliver. The respondent has filed a motion for summary judgment. (Doc. No. 11).
Burnett has not filed a response. After consideration of the pleadings, the record and the
applicable law, this court grants the respondent’s motion and by separate order enters final
judgment dismissing the case. The reasons for this ruling are set out below.
I.

PROCEDURAL HISTORY
Burnett was convicted of possession of a controlled substance with intent to deliver in the

23rd District Court of Brazoria County, Texas, on August 29, 2007. He was sentenced to thirtyfive years imprisonment. His conviction was affirmed by the First Court of Appeals of Texas on
October 9, 2008. Burnett filed a petition for discretionary review which was refused by the
Texas Court of Criminal Appeals (TCCA) on April 29, 2009.
writ of habeas corpus on February 10, 2010.

He filed a state application for

On March 24, 2010, the TCCA denied the

application without written order on the findings of the trial court. The instant petition was filed
on April 9, 2010.

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In his petition, Burnett argues that the state court failed to develop the record pertaining
to his claims and, as such:
1.
2.

The trial court erred in denying the motion to suppress;

3.

He was denied due process and is actually innocent;

4.
II.

There is insufficient evidence to convict;

He is entitled to an evidentiary hearing in the U.S. District Court.

STATEMENT OF FACTS
The court of appeals summarized the evidence presented at trial as follows:
Sweeny Police Department Sergeant J. Bills testified that Vendetta Wilcox, an
undercover informant, arranged a meeting to purchase narcotics from [Burnett] at
a feed store on March 11, 2006. Before the meeting, Sergeant Bills provided
Wilcox with ten marked twenty-dollar bills and a tape recorder. Bills also
searched Wilcox’s mouth, purse, and clothing to ensure that she was not carrying
narcotics. For acting as an informant, Wilcox received twenty-five dollars.
Sweeny Police Department Officer T. Krenek, working undercover, drove Wilcox
to the feed store, and Bills trailed behind them in an unmarked car, from which he
saw Krenek park her car behind [Burnett’s] car in the feed store parking lot.
Wilcox testified that while Officer Krenek remained in her car, Wilcox went into
Burnett’s car and, with the marked twenty-dollar bills, purchased $200 worth of
narcotics from Burnett. Wilcox explained that the she tape-recorded the narcotics
transaction, and the recording demonstrated that Wilcox counted out the twenty
dollar bills and that Burnett had more crack cocaine to sell.

Officer Krenek testified that she drove Wilcox to the feed store, and, after Wilcox
returned to Krenek’s car, Wilcox had a matchbox containing seven rocks of crack
cocaine. Krenek added that she watched Wilcox during the entire narcotics
transaction, and she did not observe her remove narcotics from any body cavity.

On March 12, 2006, Sergeant Bills executed a search warrant at Burnett’s house
in connection with the narcotics transaction. Police officers found “a white
powder substance” in Burnett’s kitchen, and Bills found eight of the previously
marked twenty-dollar bills from the narcotics transaction in Burnett’s wallet
inside of Burnett’s truck. On cross-examination, Bills conceded that Burnett’s
wife was also at Burnett’s house when the officers conducted their search and that

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he did not conduct a “strip search” of Wilcox prior to the meeting with Burnett.
Bills also added that officers found narcotics in a purse inside the home.
Burnett presented the testimony of Lavern Wilcox Gooden, Wilcox’s mother-inlaw, who testified that Wilcox was not a credible witness.
III.

STANDARD OF REVIEW
The respondent’s motion for summary judgment must be determined in compliance with

the federal habeas corpus statutes. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002).
Federal habeas corpus proceedings filed after April 24, 1996, are governed by provisions of the
Antiterrorism and Effective Death Penalty Act (the “AEDPA”), Pub.L. No. 104-132, 110 Stat.
1214 (1996). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA was enacted, at least
in part, to ensure comity, finality, and deference to state court determinations by limiting the
scope of collateral review and raising the standard for federal habeas relief. See Robertson v.
Cain, 324 F.3d 297, 306 (5th Cir. 2003) (citations omitted).

As the Supreme Court has

explained, the federal habeas corpus statutes, amended by the AEDPA, codified at 28 U.S.C.
2254(d), set forth a “highly deferential standard for evaluating state-court rulings, ..., which
demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537
U.S. 19, 24 (2002).

Specifically, the AEDPA “modified a federal habeas court’s role in

reviewing the state prisoner applications in order to prevent federal habeas ‘retrials’ and to
ensure that state court convictions are given effect to the extent possible under law.” Bell v.
Cone, 535 U.S. 685, 693 (2002).
To the extent that the petitioner’s claims were adjudicated on the merits in state court, the
AEDPA standard applies. For claims adjudicated on the merits, the AEDPA standard provides
that a petitioner is not entitled to relief unless he shows that the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court’s
decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in
direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion
than the Supreme Court based on materially indistinguishable facts. See Williams v. Taylor, 529
U.S. 362, 404-08 (2000); Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir 2009). A state court
unreasonably applies clearly established precedent if it identifies the correct governing legal
principle but unreasonably applies that principle to the facts of the case. Brown v. Payton, 544
U.S. 133, 141 (2005). Under this standard, an unreasonable application is more than merely
incorrect or erroneous; rather, the state court’s application of clearly established law must be
“objectively unreasonable.”

Williams, 529 U.S. at 409.

The focus of this objective

reasonableness inquiry is on the state court’s ultimate decision, not whether the state court
“discussed every angle of the evidence.” Dale v. Quarterman, 553 F.3d 876, 879 (5th Cir. 2008)
(quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)).
III.

DISCUSSION
A.

Insufficient Evidence

Burnett argues in his federal petition that the evidence is insufficient and that the state
courts failed to develop the record. In the course of Burnett’s appeal, the First Court of Appeals
held as follows:
Appellant argues that the evidence is legally insufficient because the “State’s only
witness to the actual drug transfer was a convicted felon” and that Wilcox “could
have easily hidden the drugs on her body because the police failed to properly
search her before her meeting with [a]ppellant.”
Viewing the evidence in the light most favorable to the verdict, Sergeant Bills
searched Wilcox before the meeting with appellant. The search took place in the
presence of Officer Krenek, who later saw Wilcox go into appellant’s car, meet
with appellant, and return to Krenek’s vehicle with seven rocks of crack cocaine.
Wilcox testified that appellant had sold her the crack cocaine. Also, the tape

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recording verifies that a narcotics transaction had occurred between appellant and
Wilcox. Moreover, when Sergeant Bills searched appellant’s truck on March 12,
2006 — the day after the narcotics transaction — he found eight of the ten
marked twenty-dollar bills in appellant’s wallet.
In sum, the evidence shows that appellant sold seven rocks of crack cocaine to
Wilcox, directly linking appellant to the narcotics and establishing his care,
custody, control, and management over the narcotics. Accordingly, we hold that
the evidence is legally sufficient to support the jury’s implied finding that
appellant “knowingly” possessed, with intent to deliver, a controlled substance.
The Texas Court of Criminal Appeals refused Burnett’s petition for discretionary review
on April 29, 2009.
Burnett re-urged an insufficient evidence point complaining about the evidentiary support
that Wilcox could have hidden the drug on her body and was never properly searched before her
meeting with Burnett in his state habeas application.

The state trial court found that the

allegations contained in the State’s answer were correct and recommended that relief be denied.
In an unpublished order issued March 24, 2010, the Texas Court of Criminal Appeals denied
Burnett’s state habeas corpus application based on the trial court’s finding made without a
hearing. Ex parte Charles Wayne Burnett, WE-73,581.
The standard for testing the sufficiency of evidence in a federal habeas review of a state
court conviction is whether, after viewing the evidence in the light most favorable to the jury’s
verdict, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Aguilar v. Dretke, 428 F.3d
526, 534 (5th Cir. 2005), cert. denied, 547 U.S. 1136 (2006).
The Texas appellate courts’ rejection on the merits of Burnett’s insufficient evidence
point of error constituted an eminently reasonable application of the Jackson v. Virginia
standard. The evidence before the jury at the guilt-innocence phase of Burnett’s trial included
(1) eye-witness testimony from two police officers; (2)

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unchallenged evidence of a tape-

recording between Burnett and Wilcox during the narcotics transaction; and (3) eight of the ten
marked twenty-dollar bills found in Burnett’s wallet the day after the transaction. When viewed
in the light most favorable to the jury’s verdict, the foregoing evidence is more than sufficient
under the Jackson standard.
B.

The Trial Court Erred

Burnett argues that the trial court erred in denying his motion to suppress evidence seized
pursuant to a search warrant. The Supreme Court has unequivocally stated that “where the State
has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in
an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465
(1976) (footnote omitted). [A] federal court need not apply the exclusionary rule on habeas
review of a Fourth Amendment claim absent a showing that the state prisoner was denied an
opportunity for a full and fair litigation of that claim at trial and on direct review.” Id. at n. 37.
It is the existence of state processes allowing an opportunity for full and fair litigation of Fourth
Amendment claims, rather than a defendant’s use of those processes, that serves the policies
underlying the exclusionary rule and bars federal habeas corpus consideration of claims under
Stone. See Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980) (holding that “in the absence of
allegations that the processes provided by a state to fully and fairly litigate Fourth Amendment
claims are routinely or systematically applied in such a way as to prevent the actual litigation of
Fourth Amendment claims on their merits.” Stone bars the litigation of Fourth Amendment
claims); Caver v. State of Alabama, 577 F.2d 1188, 1192-93 (5th Cir. 1978) (finding that “Stone
v. Powell precludes federal habeas corpus consideration of those issues whether or not the
defendant avails himself of that opportunity”).

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Here, Texas provided Burnett an opportunity to challenge the adequacy of the warrant.
After holding a hearing, the trial court denied a motion to suppress the seized evidence. As
Texas fulfilled its obligation to provide Burnett the opportunity to challenge the constitutionality
of the seizure, Stone v. Powell prohibits this Court from reconsidering the issue on federal habeas
review. The claim will be denied.
C.

Denial of Due Process and Actual Innocence

In one sentence, Burnett argues that he was denied due process because the court of
appeals incorrectly conducted its review of the legal sufficiency of the evidence and, as an
extension of this claim, appears to assert that he is actually innocent of the offense. Burnett
offers no facts, argument, or authority to support the basis of this claim; he failed to do so at any
level of the state process as well. The Fifth Circuit has repeatedly upheld a district court’s
conclusion that a petitioner’s claim of actual innocence does not by itself provide a basis for
relief. See Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000). cert. denied, 532 U.S. 915
(2001); Lucas v. Johnson, 132 F.3d 1069, 1074-75 (5th Cir.), cert. denied, 524 U.S. 965 (1998).
This claim is without merit.
D.

Request for Evidentiary Hearing

Burnett asserts that he is entitled to an evidentiary hearing in this Court. The AEDPA
limits the circumstances in which a habeas corpus petitioner may obtain an evidentiary hearing in
federal court, imposing a significant burden on petitioners who fail to diligently develop the
factual bases for their claims in state court. See Williams v. Taylor, 529 U.S. 420, 433-34 (2000).
Under the AEDPA, if a petitioner fails to develop the factual basis of a claim in state court, he is
entitled to a federal evidentiary hearing only if (1) the claim relies on either (a) a new rule of
constitutional law, made retroactive on collateral review by the Supreme Court, that was

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previously unavailable or (b) a factual predicate that could not have been previously discovered
through the exercise of due diligence and (2) the facts underlying the claim are sufficient to
establish by clear and convincing evidence that, but for the constitutional error, no reasonable
fact-finder would have found the petitioner guilty of the underlying offense.

28 U.S.C. §

2254(e)(2); Foster v. Johnson, 293 F.3d 766, 775 n. 9 (5th Cir.), cert. denied, 537 U.S. 1054
(2002); Dowthitt v. Johnson, 230 F.3d at 757.
Burnett was afforded a full and fair opportunity to develop and litigate his claims for
relief herein during his state habeas corpus proceeding. He has presented this Court with no new
evidence supporting any of his claims herein that was unavailable to him, despite the exercise of
due diligence, during his state habeas corpus proceeding. Burnett does not identify any new
legal theories supporting his claims for relief herein that were unavailable at the time he filed and
litigated his state habeas corpus claims. He does not offer any rational explanation for his failure
to fully develop any and all evidence supporting his claims herein during his state habeas
proceeding. Nor does he identify any additional evidence which he and his state habeas counsel
were unable to develop and present to the state habeas court despite the exercise of due diligence
on their part. Under such circumstances, Burnett is not entitled to a federal evidentiary hearing
to further develop the facts supporting his claims herein.
IV.

CONCLUSION
Based on the foregoing, the Court ORDERS that the respondent’s motion for summary

judgment is GRANTED and the petition for writ of habeas corpus is DENIED.
Under the AEDPA, a petitioner must obtain a certificate of appealability (“COA”) before
he can appeal the district court’s decision. 28 U.S.C. § 2253(c)(1). This court will grant a COA
only if the petitioner makes a “substantial showing of the denial of a constitutional right.” 28

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U.S.C. § 2253(c)(2). In order to make a substantial showing, a petitioner must demonstrate that
“reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As the Supreme Court
made clear in its decision in Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), a COA is “a
jurisdictional prerequisite,” and “until a COA has been issued, federal courts of appeals lack
jurisdiction to rule on the merits of appeals from the habeas petitioners.” When considering a
request for a COA, “[t]he question is the debatability of the underlying constitutional claim, not
the resolution of that debate.” Id. at 325.
Because Burnett has not made the necessary showing, this court will not issue a COA.
SIGNED at Houston, Texas this 30th day of September, 2011.

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Kenneth M. Hoyt
United States District Judge

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