O'Grady v. Thaler
Filing
16
MEMORANDUM AND ORDER granting 11 MOTION for Summary Judgment With Brief in Support. A certificate of appealabiity shall not isssue.(Signed by Judge Gregg Costa) Parties notified.(lusmith, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
SHANE TIMOTHY O’GRADY,
Petitioner,
VS.
RICK THALER,
Respondent.
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CIVIL ACTION NO. G-11-481
MEMORANDUM AND ORDER
State inmate Shane Timothy O’Grady (TDCJ #1614317) seeks habeas
corpus relief challenging a 2009 conviction for assault with a deadly weapon.
Respondent Rick Thaler has filed a Motion for Summary Judgment, to which
O’Grady has responded. Based on a careful consideration of the pleadings, the
record, and the applicable law, this Court GRANTS Respondent’s Motion for
Summary Judgment and DENIES Petitioner’s request for habeas relief.
I.
FACTUAL AND PROCEDURAL BACKGROUND
O’Grady is in custody pursuant to a judgment and sentence of the 23rd
District Court of Brazoria County, Texas. Docket Entry No. 6-7 at 48. On
November 3, 2009, a jury found O’Grady guilty of aggravated assault and
sentenced him to 30 years imprisonment. Id. The Fourteenth Court of Appeals
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affirmed the conviction. Docket Entry No. 6-4 at 1. The state court of appeals
summarized the facts thusly:
Shane O’Grady was convicted of aggravated assault with a deadly
weapon for locking his then-wife in a hotel room and threatening to
shoot her. Shane and Amye O’Grady were married in 2004, but had
separated by December 2007. A divorce action was pending when the
incident giving rise to this case occurred on September 28, 2008. On
that day, Shane contacted Amye and asked her to pick him up at his
brother’s house and take him to have a check cashed so that he could
make a child-support payment. Amye picked Shane up and began to
drive him to a check-cashing business in Lake Jackson. On the way,
Shane asked Amye to stop at a motel where he had been staying so he
could get his wallet. Upon arriving at the motel, Shane asked Amye to
come inside the room with him to collect some items he had bought
for their daughter.
Once inside, Shane locked the door and told Amye to sit down. Amye
testified Shane said he wanted closure and that holding her in the
room was the only way to get it. When Amye objected, Shane opened
the door and told her she could leave, but before she could do so he
again shut and locked the door. Amye testified Shane then pulled out
a handgun and told her she was “not going anywhere.” Amye testified
that she and Shane sat down across from each other at a table and that
Shane said he was going to kill himself and she would have to watch
so it “would be imprinted on [her] brain forever.” Amye further
testified Shane said he considered killing her but did not want to leave
their daughter without both parents.
When Amye denied Shane’s accusation that she had cheated on him,
Amye testified Shane threatened to shoot her in the shoulder. Amye
testified Shane held her captive for approximately four hours, during
which he made repeated threats to shoot her. During the exchange,
Amye was able to surreptitiously dial 911 on her cell phone. Although
she could not speak, she kept the line open for about 40 minutes until
Shane discovered the cell phone and took it from her. A recording of
the call was played for the jury. Amye testified Shane told her he
would shoot her and himself when police arrived. The police,
however, were dispatched to Shane's brother’s home under the
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mistaken belief that the incident was taking place between Shawn
O’Grady, Shane’s brother, and his wife, Dorothy.
Amye and Shane eventually left the motel room after Amye defused
the situation by agreeing to reconcile their relationship. They returned
to Shawn O’Grady’s home, where they learned police had responded
to that location. Amye whispered in Dorothy O’Grady’s ear that she
needed to speak with her. Amye testified that the next day Dorothy
told her that Shane admitted everything that had happened. Dorothy
testified that conversation took place over a phone call in which Amye
asked if Shane told Dorothy about what happened, to which Dorothy
answered “yeah.”
Docket Entry No. 6-5 at 2–3. O’Grady did not file for discretionary review with
the Texas Court of Criminal Appeals.
O’Grady filed a state application for writ of habeas corpus challenging his
conviction. Docket Entry No. 6-19 at 13–24. The district court denied O’Grady
relief without a hearing. Docket Entry No. 6-20 at 53. The Texas Court of
Criminal Appeals denied relief without written order. Docket Entry No. 6-19 at 2.
O’Grady subsequently filed this application for federal habeas relief.
Docket Entry No. 1. O’Grady alleges that his attorney was deficient for: (a)
introducing evidence that showed he had been arrested for violating a protective
order; (b) introducing evidence that O’Grady had admitted to certain events at the
motel room and having a firearm; (c) admitting O’Grady was guilty during closing
argument; and (d) failing to request that the court instruct the jury concerning a
lesser included offense. Id. at 7, 11. Additionally, he claims that the trial court
erred when it: (a) amended its judgment to show a finding of a deadly weapon; and
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(b) failed to instruct the jury on the lesser included offense of deadly conduct. Id.
at 7.
II.
STANDARD OF REVIEW
This Court reviews O’Grady’s petition under the federal habeas statutes as
amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
28 U.S.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002). The
AEDPA provides as follows, in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of
a State court, a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear
and convincing evidence.
28 U.S.C. § 2254(d)–(e)(1).
A state-court determination on questions of law and mixed questions of law
and fact is reviewed under 28 U.S.C. section 2254(d)(1) and receives deference
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unless it “was contrary to, or involved an unreasonable application of clearly
established Federal law, as determined by the Supreme Court of the United States.”
Hill
v.
Johnson,
U.S.C. § 2254(d)(1)).
210
F.3d
481,
485
(5th
Cir.
2000)
(quoting
28
A state-court decision is “contrary to” Supreme Court
precedent if (1) the state court’s conclusion is “opposite to that reached by the [the
Supreme Court] on a question of law” or (2) “the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent” and arrives
at an opposite result. (Terry) Williams v. Taylor, 529 U.S. 362, 405 (2000). A
state court unreasonably applies Supreme Court precedent if: (1) it unreasonably
applies the correct legal rule to the facts of a particular case; or (2) it “unreasonably
extends a legal principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to a new context
where it should apply.” Id. at 407.
Questions of fact are governed by section 2254(d)(2). Martin v. Cain, 246
F.3d 471, 475 (5th Cir. 2001) (citation omitted). A state court’s factual findings
are entitled to deference on federal habeas corpus review and are presumed correct
under section 2254(e)(1) unless the petitioner rebuts those findings with “clear and
convincing evidence.” Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006)
(quoting Hughes v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005)). “This deference
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extends not only to express findings of fact, but to the implicit findings of the state
court.” Id. at 444–45 (citations omitted).
While as “a general principle[] Rule 56 of the Federal Rules of Civil
Procedure[] relating to summary judgment[] applies with equal force in the context
of habeas corpus cases,” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.), cert.
denied, 531 U.S. 831 (2000), the rule applies only to the extent that it does not
conflict with the habeas rules. For example, section 2254(e)(1)—which mandates
that findings of fact made by a state court are “presumed to be correct”—overrides
the ordinary summary judgment rule that all disputed facts must be construed in
the light most favorable to the nonmoving party. 28 U.S.C. § 2254(e)(1).
III.
DISCUSSION
A.
Ineffective Assistance of Counsel
O’Grady contends that he is entitled to relief because he was denied
effective assistance of counsel.
Docket Entry No. 1 at 7, 11.
Claims for
ineffective assistance of counsel are analyzed under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687–688 (1984).
To prevail under
Strickland, a defendant must demonstrate both constitutionally deficient
performance by counsel and actual prejudice as a result of the alleged deficiency.
Id. at 687; see also (Terry) Williams, 529 U.S. at 390.
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The first prong of the governing standard is only satisfied when the
defendant shows that “counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Scrutiny of counsel’s performance
must be “highly deferential[,]” and a reviewing court must make every effort “to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689. A federal habeas corpus court may not find
ineffective assistance of counsel merely because it disagrees with counsel’s chosen
trial strategy. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). “A conscious
and informed decision on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it . . . permeates the entire
trial with obvious unfairness.” Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.
1997) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).
To prove prejudice and satisfy the second prong, a defendant must
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Harrington v. Richter, --U.S. --- , 131 S. Ct. 770, 787 (2011) (citing Strickland, 466 U.S. at 694). A
“reasonable probability” requires that “[t]he likelihood of a different result [is]
substantial, not just conceivable.” Id. at 792 (quoting Strickland, 466 U.S. at 693).
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In addition to the deference given the trial counsel’s choice of tactic, the
AEDPA requires the court to review the state habeas court’s decision with
deference. To the extent that O’Grady’s ineffective assistance claims were rejected
in state court, the central question is not whether this Court “‘believes the state
court’s determination’ under the Strickland standard ‘was incorrect[,] but whether
that determination was unreasonable—a substantially higher standard.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.
465, 473 (2007)).
In addition, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Id. (citation omitted).
Thus, this
standard is “doubly deferential” on habeas corpus review. Id.; see also Richter,
131 S. Ct. at 788 (emphasizing that the standards created by Strickland and section
2254(d) are “highly deferential,” and “doubly so” when applied in tandem)
(citations and quotations omitted).
Three of O’Grady’s Strickland claims—that his trial counsel was deficient
for (1) introducing evidence of his arrest for violation of a protective order, (2)
introducing evidence of his admission to events in the motel room and to
possession of a firearm, and (3) admitting O’Grady’s guilt during closing
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argument—were brought on direct appeal to the Fourteenth Court of Appeals.1
Docket Entry No. 6-1 at 12–13. That court applied Strickland and, noting that the
record was silent as to the reasons for counsel’s actions, determined that O’Grady
“failed to rebut the presumption that counsel’s conduct fell within the range of
reasonable representation.”2 Docket Entry No. 6-5 at 5.
1
Under Texas law, a claim raised on direct appeal generally should not be relitigated through a
state habeas proceeding. See Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994) (en
banc). Federal review of a claim is procedurally barred if state court’s denial of relief clearly and
expressly based its denial on a state procedural default. Coleman v. Thompson, 501 U.S. 722,
750 (1991). In this case, the state habeas court gave no reasoning in its judgment denying
O’Grady’s petition. Docket Entry 6-20 at 52. While the Attorney General argued that those
claims brought on direct appeal were barred from habeas review (Docket Entry No. 6-20 at 50–
51), the court did not explicitly adopt this reasoning. See Docket Entry 6-20 at 53. It is not clear
in this case that the state court’s determination rested primarily on state procedural law as
opposed an examination on the merits. See Coleman, 501 U.S. at 739. Furthermore, the law
concerning the proper manner in which to bring Strickland claims in Texas courts is in flux. See
Trevino v. Thaler, --- U.S. ---, 133 S. Ct. 524, 525 (2012) (granting certiorari to address the
question of whether “a death-sentenced prisoner confined pursuant to a Texas judgment may
assert ineffective assistance of state habeas counsel as cause to excuse the procedural default of a
claim of ineffective assistance of trial counsel”). This Court, therefore, finds it more prudent to
examine O’Grady’s claims on the merits.
2
Because the record is silent on O’Grady’s trial counsel’s strategy, O’Grady seeks either an
order forcing trial counsel to produce an affidavit responding to the charges or a live evidentiary
hearing, which he claims will properly develop the record. Docket Entry No. 14 at 13, 16. This
Court denies both. When a habeas petitioner has failed to fully develop the factual basis of his
claims in state court, the AEDPA precludes further factual development in federal court. See
(Michael) Williams v. Taylor, 529 U.S. 420, 436–37 (2000). Given O’Grady’s failure to develop
a factual basis for his claim in state court, this court’s power to order an evidentiary hearing is
restricted by subsection 2254(e) of the AEDPA. Subsection 2254(e) allows for an evidentiary
hearing only if the petitioner can show either (1) that his claims rely on a new, previously
unavailable rule of constitutional law or a factual predicate that could not have been discovered
through due diligence, or (2) that the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that, but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).
O’Grady cites no new rule of constitutional law, no factual predicate that he could not have
previously discovered, and makes no claim of actual innocence. Because O’Grady has not met
the requirements of subsection 2254(e), this court’s discretionary power is not triggered. See id.
O’Grady’s request for further evidence is denied.
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O’Grady first argues that his trial counsel was deficient for eliciting
testimony on cross examination concerning O’Grady’s arrest for violating a
protective order. Docket Entry No. 1 at 7, 11. Respondent points out that the
arrest was introduced so that the circumstances surrounding it would cast the
prosecution’s witness in an unfavorable light, thus undermining her credibility.
Docket Entry No. 11 at 15. Where there is at least a reasonable justification for
counsel’s action, it cannot be said that her representation was objectively
unreasonable. See Strickland, 466 U.S. at 687. O’Grady has not shown that
attacking the witness’s credibility in such a manner was an unreasonable trial tactic
which no attorney would undertake, and thus cannot establish Strickland’s first
prong. See id.
Second, O’Grady complains that his counsel was deficient for introducing
evidence that he admitted to certain events at the motel room and that he was in
possession of a firearm. Docket Entry No. 1 at 7, 11. On appeal, the Fourteenth
Court held that “it was not unreasonable for counsel to concede these points, nor
was it unreasonable to adopt a strategy in which counsel attempted to negate the
element of intent required for aggravated assault and undermine Amye’s
credibility[,]” pointing out that “[i]t was not in dispute that Shane was in the motel
room with Amye and produced a handgun.” Docket Entry No. 6-5 at 5. O’Grady
cannot show that his counsel’s admission of these undisputed facts was
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unreasonable or that he was actually prejudiced. Accordingly, the state habeas
court’s decision was not unreasonable.
Third, O’Grady faults his trial counsel for admitting his guilt during closing
argument. Docket Entry No. 1 at 7, 11. An admission of guilt is often used by
defense counsel facing overwhelming evidence to attempt to mitigate a defendant’s
sentence. While the tactic may not have been successful here, it is not a strategy
which no reasonable counsel would attempt. Further, O’Grady offers nothing that
would show actual prejudice by this tactic.
O’Grady’s final ineffective assistance complaint, that his trial counsel failed
to object to the jury charge and to request an instruction on the lesser included
offense of deadly conduct, was brought for the first time in the state habeas
proceeding. Docket Entry No. 1 at 7, 11. The Fifth Circuit recently recognized
that a lesser included charge may go unrequested as part of an “all-or-nothing”
strategy. See Druery v. Thaler, 647 F.3d 535, 540 (5th Cir. 2011) (“[Petitioner]
articulated a valid strategic reason for declining the instruction: to obtain a full
acquittal.”). Such an approach is a strategic trial choice that does not give rise to a
claim of ineffectiveness. Moreover, no evidence was shown to the jury that would
have reasonably led to the conclusion that O’Grady committed the assault yet did
not use a deadly weapon. Under these facts, an objection to the jury charge would
have been meritless. Therefore, neither Strickland prong is satisfied. See Smith v.
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Puckett, 907 F.2d 581, 585 n. 6 (5th Cir. 1990) (“prejudice does not issue from[]
failure to raise a legally meritless claim”). O’Grady is not entitled to federal
habeas corpus relief on this claim.
B.
Trial Court Error
O’Grady next alleges that the trial court erred by failing to instruct the jury
of a lesser included offense and by finding that he possessed a deadly weapon in
the hotel room, violating his right to due process. Docket Entry No. 1 at 7.
“In conducting habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citation omitted); see also Malchi v.
Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (citation omitted). Thus, trial court error
under state law “does not justify federal habeas corpus relief unless it is of such
magnitude as to constitute a denial of fundamental fairness under the due process
clause.” Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983); see also Brown v.
Dretke, 419 F.3d 365, 376 (5th Cir. 2005) (citations omitted). Only those errors
that violate “those fundamental conceptions of justice which lie at the base of our
civil and political institutions[] and which define the community’s sense of fair
play and decency” will render a trial fundamentally unfair. Murray v. Quarterman,
243 F. App’x 51, 54 (5th Cir. 2007) (quoting Dowling v. United States, 493 U.S.
342, 353 (1990)).
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O’Grady claims that the trial court erred by failing to instruct the jury on the
lesser included offense of deadly conduct. Docket Entry No. 14 at 16–17. It is
well-settled, however, that in a noncapital case “the failure to give an instruction
on a lesser included offense does not raise a federal constitutional issue.”3 Creel v.
Johnson, 162 F.3d 385, 390 (5th Cir. 1998) (citation omitted). It is beyond this
Court’s habeas authority to question a state court judgment on the state court jury
instruction issue when no constitutional question exists. Wood v. Quarterman, 503
F.3d 408, 413 (5th Cir. 2007) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”) (quoting McGuire,
502 U.S. at 67–68). Accordingly, relief on this claim is denied.
O’Grady lastly claims that at his indigency hearing, the trial court
“amended” its judgment to include a finding of a deadly weapon. Docket Entry
No. 14 at 17–18. The jury reached its verdict on November 3, 2009, and O’Grady
filed his notice of appeal. Docket Entry No. 6-7 at 103–104. Two weeks later on
November 17, the trial court issued the judgment. Id. As an initial matter, there
was no “amended” judgment.
Per normal procedures, the trial court entered
judgment in the days after the verdict. O’Grady identifies no earlier judgment that
3
O’Grady counters that Texas’s “interpretation of whether to provide the lesser-included
instruction violates the Constitution.” Docket Entry No. 14 at 17 (citing Moreno v. Estelle, 717
F.2d 171, 179 (5th Cir. 1983)). The authority cited, however, concerns jury selection, not a jury
instruction. Moreno, 717 F.2d at 178–79. And worse for O’Grady’s argument, Moreno holds
that even the issue of jury selection is a matter of state procedural law, not federal constitutional
law. Id. at 179.
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failed to include the deadly weapon finding. In any event, to the extent the entry of
judgment did violate some Texas procedural rule, no federal constitutional
question is raised. See Wood, 503 F.3d at 413. This claim is denied.
IV.
CERTIFICATE OF APPEALABILITY
The AEDPA requires a certificate of appealability before an appeal may
proceed. See Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (noting
that actions filed under either 28 U.S.C. section 2254 or section 2255 require a
certificate of appealability). “This is a jurisdictional prerequisite because the COA
statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals . . . .’” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 28 U.S.C. section 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 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, 537 U.S. at 336, 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 habeas petitioners.”
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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 342.
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000). After considering all of the pleadings, the state court records,
and the applicable law, the Court concludes that none of the issues presented in this
case warrant a certificate of appealability under the applicable standard. Therefore,
a certificate of appealability will not issue.
V.
CONCLUSION
Accordingly, Respondent’s Motion for Summary Judgment (Docket entry
No. 11) is GRANTED. Petitioner’s petition for writ of habeas corpus (Docket
entry No. 1) is DISMISSED. A certificate of appealability SHALL NOT issue.
IT IS SO ORDERED.
SIGNED this 25th day of March, 2013.
_________________________________
Gregg Costa
United States District Judge
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