Winfrey v. Thaler

Filing 20

MEMORANDUM AND ORDER. Respondent's motion for summary judgment 18 is GRANTED. The habeas corpus petition is DISMISSED with prejudice. A certificate of appealability is DENIED. The Clerk shall provide a copy of this order to the parties.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CLIFFORD NEAL WINFREY,
TDCJ #01365252,
Petitioner,
VS.
LORIE DAVIS,

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February 28, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-13-253

Respondent.
MEMORANDUM AND ORDER
Petitioner Clifford Neal Winfrey (“Petitioner”) has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and forty-year term of
imprisonment for aggravated robbery. (Docket Entry No. 1). Respondent1 has filed a Motion for
Summary Judgment (Docket Entry No. 18), to which Petitioner has filed a Traverse in response
(Docket Entry No. 19).

After considering the pleadings, motion, response, record, and

applicable law, the Court will grant Respondent’s motion for summary judgment and dismiss this
habeas petition.
I.

Background
On June 24, 2005, Petitioner was charged for aggravated robbery in an indictment which

alleged, in pertinent part:
Clifford Neal Winfrey, Jr., hereafter styled the Defendant, heretofore on or about
MAY 30, 2005, did then and there unlawfully, while in the course of committing
theft of property owned by AARON GRIFFIN and with intent to obtain and
maintain control of the property, intentionally and knowingly threaten and place
AARON GRIFFIN in fear of imminent bodily injury and death, and the
Defend[]ant did then and there use and exhibit a deadly weapon, to-wit: A
1

Effective May 1, 2016, Lorie Davis succeeded William Stephens as Director of the Texas Department of
Criminal Justice - Correctional Institutions Division. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Davis is substituted in place of Stephens as the respondent in this case.

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KNIFE.2
The indictment also alleged that Petitioner had two prior felony convictions, one for
burglary of a habitation and one for possession of a controlled substance.3 On January 30, 2006,
Petitioner pled guilty in an open plea and pled true to the two felony enhancements in Cause No.
1028859 in the 174th District Court of Harris County, Texas.4 The trial court deferred sentencing
until a pre-sentence investigation could be conducted and subsequently held the punishment
hearing on April 12, 2006. See Winfrey v. State, 01-06-00473-CR, 2007 WL 1844425, at *1
(Tex. App–Houston [1st Dist.] Jun. 28, 2007, pet. ref’d) (unpublished op.). At the punishment
hearing, the trial court heard testimony from Petitioner, Petitioner’s mother, and the complainant,
found Petitioner guilty and the felony enhancements true, and sentenced Petitioner to 40 years in
prison.5
Petitioner filed a notice of appeal, and the state intermediate court of appeals affirmed his
conviction on June 28, 2007. See Winfrey, 2007 WL 1844425, at *2.

The Texas Court of

Criminal Appeals refused his petition for discretionary review on January 16, 2008. See In re
Winfrey, PD-1034-07 (Tex. Crim. App. 2008). On June 29, 2008, Petitioner filed an application
for habeas corpus relief in state court.6 At the state habeas court’s request, Mr. Elihu Dodier, trial
counsel for Petitioner, submitted an affidavit in response to Petitioner’s ineffective assistance of

2

State Habeas Corpus Record (“SHCR”), Docket Entry No. 15-7 at 9 of 73 (“Indictment”).

3

Id.

4

See Docket Entry No. 1, at 2-3, 9 (“Petition”); see also SHCR, Docket Entry No. 15-4 at 76-81 of 87
(“Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession; Admonishments”).
5

See id.; see also SHCR, Docket Entry No. 15-4 at 8 of 87 (“State Application for Habeas Corpus”).

6

State Application for Habeas Corpus at 17 of 87.

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counsel claims.7 Petitioner alleges, as his sole remaining issue,8 that trial counsel failed to inform
him of a plea offer of 30 years (Issue Two). Trial counsel testified:
Response to Issue Number Four: All plea offers were presented to and extensively
discussed with Applicant. The twenty-five (25) year offer was presented to
Applicant and since Applicant was charged as a habitual offender, he was advised
that twenty-five (25) years was the minimum sentence a jury could assess if he
was found guilty.9
Counsel also testified:
Response to Issue Number Five: All plea offers were presented to and extensively
discussed with Applicant. The thirty (30) year sentence was also presented,
explained and discussed with Applicant. All plea offers were rejected by
Applicant.10
The State habeas court found that the facts stated in trial counsel’s affidavit were true and
made the following findings relevant to Petitioner’s sole remaining issue:
11.

Trial counsel informed Applicant of all plea offers tendered by the State,
and Applicant rejected all of these plea offers;
...

19.

The totality of the representation afforded Applicant was sufficient to
protect his right to reasonably effective assistance of counsel.11

On April 9, 2014, the Court of Criminal Appeals denied relief without a written order on
the findings of the trial court.12 Petitioner timely filed the instant petition under 28 U.S.C.
7

Id. at 58-59 of 87 (“Dodier Affidavit”).

8

Petitioner had originally raised claims regarding his duress defense but acknowledges in his traverse that
he waived all non-jurisdictional defects by a valid guilty plea. See Docket Entry No. 19 at 4. Further, it
appears that Petitioner no longer contends that he was not informed of the 25-year deal. See id.; see also
SHCR, Docket Entry No. 15-4 at 30 of 87.
9

Dodier Affidavit at 58 of 87.

10

Id.

11

Id. at 63-64 of 87 (“Findings of Fact and Conclusions of Law”).

12

SHCR, Docket Entry No. 15-1, Action Taken Sheet.

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§2254, and Respondent filed a motion for summary judgment. This case is ripe for adjudication.
II.

Standard of Review
A court should grant summary judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, in any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c). The moving party bears the burden of initially raising the basis of
the motion and identifying the portions of the record demonstrating the absence of a genuine
issue for trial.

Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992).

Thereafter, “the burden shifts to the nonmoving party to show with ‘significant probative
evidence’ that there exists a genuine issue of material fact.” Hamilton v. Seque Software, Inc.,
232 F.3d 473, 477 (5th Cir. 2000) (quoting Conkling v. Turner, 18 F.3d 1285, 1295 (5th
Cir.1994)). The Court may grant summary judgment on any ground supported by the record,
even if the ground is not raised by the movant. United States v. Houston Pipeline Co., 37 F.3d
224, 227 (5th Cir.1994).
While Rule 56 of the Federal Rules regarding summary judgment applies generally “with
equal force in the context of habeas corpus cases,” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.
2000), it applies only to the extent that it does not conflict with the habeas rules. Smith v.
Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other grounds by Tennard v. Dretke,
542 U.S. 274 (2004).
The writ of habeas corpus provides an important, but limited, examination of an inmate’s
conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (noting that “state
courts are the principal forum for asserting constitutional challenges to state convictions”). The
Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified as amended at 28 U.S.C. §
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2254(d), “imposes a highly deferential standard for evaluating state-court rulings and demands
that state-court decisions be given the benefit of the doubt”; it also codifies the traditional
principles of finality, comity, and federalism that underlie the limited scope of federal habeas
review. Renico v. Lett, 559 U.S. 766, 773 (2010) (quotations omitted).
AEDPA “bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject
only to the exceptions in [28 U.S.C.] §§ 2254(d)(1) and (d)(2).” Richter, 562 U.S. at 98. “When
a federal claim has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary.” Id. at 99.
Where a claim has been adjudicated on the merits by the state courts, relief is available
under § 2254(d) only in those situations “where there is no possibility fair minded jurists could
disagree that the state court’s decision conflicts with” Supreme Court precedent, Richter, 562
U.S. at 102, or where the decision “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (2); see also
Miller v. Thaler, 714 F.3d 897, 901 (5th Cir. 2013). The focus of this well-developed standard
“is not whether a federal court believes the state court’s determination was incorrect but whether
that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007).
Whether a federal habeas court would have, or could have, reached a conclusion contrary
to that reached by the state court on an issue is not determinative under § 2254(d). Id. (“Even a
strong case for relief does not mean that the state court’s contrary conclusion was
unreasonable.”). Thus, AEDPA serves as a “guard against extreme malfunctions in the state
criminal justice systems,” not as a vehicle for error correction. Id. (citation omitted); see also
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Wilson v. Cain, 641 F.3d 96, 100 (5th Cir. 2011). “If this standard is difficult to meet, that is
because it was meant to be.” Richter, 562 U.S. at 102.
On federal habeas review under § 2254(d)(2), state court factual determinations are not
unreasonable “merely because [the federal court] would have reached a different conclusion in
the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Supreme Court has explained
that “even if [r]easonable minds reviewing the record might disagree about the finding in
question, on habeas review that does not suffice to supersede the trial court’s . . . determination.”
Id. (citation and internal quotation marks omitted).
“Review under § 2254(d)(1) focuses on what a state court knew and did.” Cullen v.
Pinholster, 563 U.S. 170, 182 (2011). Reasoning that “[i]t would be strange to ask federal courts
to analyze whether a state court’s adjudication resulted in a decision that unreasonably applied
federal law to facts not before the state court,” Pinholster explicitly held that “[i]f a claim has
been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court.” Id. at 185. Thus,
“evidence introduced in federal court has no bearing on § 2254(d)(1) review.” Id.
Courts construe pleadings filed by pro se litigants under a less stringent standard than
those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972); Bledsue v. Johnson, 188 F.3d
250, 255 (5th Cir.1999). Thus, pro se pleadings are entitled to a liberal construction that includes
all reasonable inferences that can be drawn from them. Haines, 404 U.S. at 521. Nevertheless,
“the notice afforded by the Rules of Civil Procedure and the local rules” is considered
“sufficient” to advise a pro se party of his burden in opposing a summary judgment motion.
Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992).

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III.

Ineffective Assistance of Counsel for a Guilty Plea
The Constitution guarantees a fair trial for criminal defendants through the Due Process

Clause, but the basic elements of a fair trial are defined largely by the Sixth Amendment, which
conveys the right to have the effective assistance of counsel. See U.S. CONST. amend. VI;
Strickland v. Washington, 466 U.S. 668, 685 (1984); see also McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970) (observing that “the right to counsel is the right to the effective assistance
of counsel”). Claims for ineffective assistance of counsel are analyzed under the following twoprong standard:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. Thus, to prevail under the Strickland standard, a defendant must
demonstrate both constitutionally deficient performance by counsel and actual prejudice as a
result of the alleged deficiency. See Williams v. Taylor, 529 U.S. 390, 390-91 (2000).
The first prong of the governing standard is only satisfied where the defendant shows that
“counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 687. 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. There is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” See United States v. Molina-Uribe,
429 F.3d 514, 518 (5th Cir. 2005) (citing Strickland, 466 U.S. at 687-88), cert. denied, 547 U.S.
1041 (2006).
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“‘[A] habeas court must determine what arguments or theories supported or, as

here, could have supported, the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of [the Supreme] Court.’” Miller, 714 F.3d at 902 (citing Richter, 131
S. Ct. at 786.). “Put simply, both the Strickland standard and the AEDPA standard are ‘highly
deferential’ and ‘when the two apply in tandem, review is “doubly” so.’” Id. (citations omitted).
The Strickland test applies when a prisoner alleges denial of effective assistance of
counsel in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57–58 (1985). “In a case,
such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective
assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s
inquiry into whether ‘the result of the proceeding would have been different,’ 466 U.S. at 694[],
requires looking not at whether the defendant would have proceeded to trial absent ineffective
assistance but whether he would have accepted the offer to plead pursuant to the terms earlier
proposed.” Missouri v. Frye, 132 S. Ct. 1399, 1409–10 (2012). In addition to showing a
reasonable probability he would have accepted an earlier plea, a habeas petitioner must also
show that “if the prosecution had the discretion to cancel it or if the trial court had the discretion
to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court
would have prevented the offer from being accepted or implemented.” Id. at 1410.
To determine whether counsel’s performance is constitutionally deficient, courts “indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
assistance.” Strickland, 466 U.S. at 689. Further, “[t]he reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own statements or actions.” Id. at
691. When a prisoner challenges his plea based on ineffective assistance of counsel, the
“prejudice” requirement “focuses on whether counsel’s constitutionally ineffective performance
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affected the outcome of the plea process.” Hill, 474 U.S. at 58. Reviewing courts must consider
the totality of the evidence before the finder of fact in assessing whether the result would likely
have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695–96. A
failure to establish either prong of the Strickland test requires a finding that counsel’s
performance was constitutionally effective. Id. at 696.
Petitioner claims that trial counsel was ineffective because he allegedly did not inform
Petitioner of the state’s plea offer of thirty years. “[A]s a general rule, defense counsel has the
duty to communicate formal offers from the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.” Frye, 132 S. Ct. at 1408.
The state habeas record reflects that trial counsel submitted an affidavit testifying that he
informed Petitioner of both the twenty-five year offer and the thirty-year offer, extensively
discussing each offer with Petitioner, and that Petitioner rejected both offers.13 The state habeas
court entered findings of fact and conclusions of law finding that all plea offers were presented to
Petitioner and were rejected.14 Petitioner challenges these findings, pointing out that he did not
sign the page upon which it states that he rejected the thirty-year deal.15 Petitioner contends that
this clearly shows that he was never informed of the offer.
Under the AEDPA, the federal court reviewing a habeas petition defers to the factual
findings of the state habeas court unless those findings “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.” 28 U.S.C. § 2254(d)(2). Here, there is evidence in the record to show that trial

13

See Dodier Affidavit.

14

See Findings of Fact and Conclusions of Law, No. 11.

15

See SHCR, Docket Entry No. 15-4 at 31 of 87 (Agreed Setting Sheet).

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counsel presented all plea offers and that Petitioner rejected those offers. The determination by
the state habeas court that trial counsel notified and discussed with Petitioner all of the offers for
plea deals is based on competent evidence in the record and did not result in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. Without more, Petitioner’s lack of signature on the setting sheet stating that
he had rejected the thirty-year offer does not overcome the presumption that the state habeas
court’s factual determination was not unreasonable and was based on evidence in the record.
Petitioner relies on Missouri v. Frye, 132 S. Ct. 1399 (2012), to argue that trial counsel
rendered deficient performance, but Frye is distinguishable from the case here. In Frye, there
was no indication in the record that trial counsel had ever informed his client of the plea deal.
Frye, at 132 S. Ct. at 1405 (noting that the state court of appeals had found that the “record is
void of any evidence of any effort by trial counsel to communicate the Offer to Frye during the
Offer window”). Thus, the Frye Court deferred to the fact findings of the state court, whereas
Petitioner asks this Court to do the opposite here. Unlike Frye, the state habeas court concluded
that trial counsel had presented all offers to Petitioner, and there is competent evidence in the
record to support that finding.16 Under these circumstances, the Fifth Circuit has upheld the
denial of federal habeas relief. See, e.g., Miller, 714 F.3d at 902 (affirming denial of habeas
relief and noting that “the state habeas court expressly found that ‘[n]othing in the record . . .
indicate[d] that counsel failed to convey any plea offers from the State’”); Teague v. Scott, 60
F.3d 1167, 1171 (5th Cir. 1995) (affirming denial of habeas relief and finding, based on the
affidavit of trial counsel and a letter from the defendant, that the record supported the finding
that trial counsel had informed defendant of the plea offers).
Because the state court factual determination that Petitioner knew of the offer and
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rejected it is adequately supported in the record, the Court must presume that it is correct.
Teague, 60 F.3d at 1171. From the record before the Court, the state habeas court did not
unreasonably apply clearly established federal law when it determined that Petitioner had
voluntarily and knowingly entered pleas of guilty because he had been informed of all of the plea
offers from the state. See 28 U.S.C. § 2254(d)(1). Further, the state’s determination that counsel
had presented all plea offers and that the totality of the representation provided Petitioner with
effective assistance of counsel was not based on an unreasonable determination of the facts in
light of the evidence presented. 28 U.S.C. § 2254(d)(2). Accordingly, Respondent is entitled to
summary judgment, and Petitioner is not entitled to habeas relief, because Petitioner failed to
show that trial counsel’s performance fell below the objective standard required by Strickland.
Id.
IV.

Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or

deny a certificate of appealability when entering a final order that is adverse to the petitioner.
See 28 U.S.C. § 2253. A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard, 542 U.S. at 282 (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling standard, this requires a
petitioner to show “that reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). Where denial of relief is based on procedural grounds, the petitioner must show not
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only that “jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right,” but also that they “would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
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). For
reasons set forth above, this court concludes that jurists of reason would not debate whether any
procedural ruling in this case was correct or whether the petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
V.

Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.

Respondent’s motion for summary judgment (Docket Entry No. 18) is

GRANTED.
2.

The habeas corpus petition is DISMISSED with prejudice.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this order to the parties.
SIGNED at Houston, Texas, this 28th day of February, 2017.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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