Harris v. Stephens

Filing 27

MEMORANDUM AND ORDER denying 15 MOTION for Evidentiary Hearing; granting 23 MOTION for Summary Judgment with Brief in Support. No certificate of appealability shall issue.(Signed by Judge Kenneth M. Hoyt) Parties notified.(chorace, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DANIEL HARRIS,

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Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

March 23, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:15-CV-241

MEMORANDUM AND ORDER
This case is before the Court on petitioner Daniel Harris’ petition for a writ of habeas
corpus, and respondent William Stephens’ motion for summary judgment. Having carefully
considered the petition, the motion, all the arguments and authorities submitted by the parties,
and the entire record, the Court is of the opinion that respondent’s motion should be granted, and
Harris’ petition should be dismissed.
I.

Background
Harris was convicted by a jury of aggravated kidnaping in the 182nd Judicial District

Court of Harris County, Texas. That court sentenced him to 33 years imprisonment.
The First Court of Appeals summarized the facts of the case:
Angela Odom, the complainant, testified that on February 18,
2009, while she was sleeping at her home, [Harris], her sister’s
husband, came to her house at approximately 3:00 or 4:00 a.m.
[Harris] pointed a firearm at Odom and demanded to be shown
where her sister was staying. Odom then drove [Harris] to the
apartment complex where her sister was staying, and [Harris]
pointed the firearm at Odom for the duration of the drive. She
parked her car and, because she did not want to show [Harris]
where her sister was staying, Odom led [Harris] to the apartment of
her uncle, who was staying at the same apartment complex as her
sister. After her uncle answered the door and offered for the two
of them to come inside his apartment, [Harris] grabbed Odom by
the arm and led her back to her car, where he discharged the

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firearm into the car’s dashboard because he was “frustrated.” As
they sat in the car, Odom saw two police patrol cars park nearby.
Police officers then approached her car and took [Harris] and
Odom out of the car. After questioning [Harris], Odom, her uncle,
and her sister, the police officers arrested [Harris] for aggravated
kidnapping.
Harris v. State, No. 01-11-00213-CR (Tex. App. – Houston [1st Dist.] 2012), slip op. at 2-3.
Texas’ First Court of Appeals affirmed the judgment. Id. Harris did not file a petition
for discretionary review.
On May 28, 2013, Harris filed a state habeas corpus application. The Texas Court of
Criminal Appeals (“TCCA”) denied the application without written order on the findings of the
trial court. SH at Action Taken Page, 18.1
Harris filed this federal petition for a writ of habeas corpus on January 22, 2015.
Respondent moved for summary judgment on August 10, 2015. Harris filed a response on
August 25, 2015, and a supplemental brief on August 28, 2015.
II.

The Applicable Legal Standards
A.

The Anti-Terrorism and Effective Death Penalty Act

This federal petition for habeas relief is governed by the applicable provisions of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S.
320, 335-36 (1997). Under the AEDPA, federal habeas relief based upon claims that were
adjudicated on the merits by the state courts cannot be granted unless the state court’s decision
(1) “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) “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); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999).
1

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“SH” refers to the transcript of Harris’ state habeas corpus proceeding.

For questions of law or mixed questions of law and fact adjudicated on the merits in state
court, this Court may grant federal habeas relief under 28 U.S.C. § 2254(d)(1) only if the state
court decision “was contrary to, or involved an unreasonable application of, clearly established
[Supreme Court precedent].” See Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). Under the
“contrary to” clause, this Court may afford habeas relief only if “‘the state court arrives at a
conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the
state court decides a case differently than . . . [the Supreme Court] has on a set of materially
indistinguishable facts.’” Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) (quoting
Williams v. Taylor, 529 U.S. 362, 406 (2000)).
The “unreasonable application” standard permits federal habeas relief only if a state court
decision “identifies the correct governing legal rule from [the Supreme Court] cases but
unreasonably applies it to the facts of the particular state prisoner’s case.” Williams, 529 U.S. at
406. “In applying this standard, we must decide (1) what was the decision of the state courts with
regard to the questions before us and (2) whether there is any established federal law, as
explicated by the Supreme Court, with which the state court decision conflicts.” Hoover v.
Johnson, 193 F.3d 366, 368 (5th Cir. 1999). A federal court’s “focus on the ‘unreasonable
application’ test under Section 2254(d) should be on the ultimate legal conclusion that the state
court reached and not on whether the state court considered and discussed every angle of the
evidence.” Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001), aff’d, 286 F.3d 230 (5th Cir.
2002) (en banc), cert. denied sub nom. Neal v. Epps, 537 U.S. 1104 (2003). The solitary inquiry
for a federal court under the ‘unreasonable application’ prong becomes “whether the state court’s
determination is ‘at least minimally consistent with the facts and circumstances of the case.’” Id.
(quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997)); see also Gardner v. Johnson,

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247 F.3d 551, 560 (5th Cir. 2001) (“Even though we cannot reverse a decision merely because
we would reach a different outcome, we must reverse when we conclude that the state court
decision applies the correct legal rule to a given set of facts in a manner that is so patently
incorrect as to be ‘unreasonable.’”).
The AEDPA precludes federal habeas relief on factual issues unless the state court’s
adjudication of the merits was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. See 28 U.S.C. § 2254 (d)(2); Hill v. Johnson,
210 F.3d 481, 485 (5th Cir. 2000). The State court’s factual determinations are presumed correct
unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Jackson v.
Anderson, 112 F.3d 823, 824-25 (5th Cir. 1997).
B.

The Standard for Summary Judgment in Habeas Corpus Cases

“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. 2000). Insofar as they are consistent with established
habeas practice and procedure, the Federal Rules of Civil Procedure apply to habeas cases. See
Rule 11 of the Rules Governing Section 2254 Cases. In ordinary civil cases, a district court
considering a motion for summary judgment is required to construe the facts in the case in the
light most favorable to the non-moving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255
(1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor”). Where a state prisoner’s factual allegations have been adversely resolved
by express or implicit findings of the state courts, however, and the prisoner fails to demonstrate
by clear and convincing evidence that the presumption of correctness established by 28 U.S.C. §
2254(e)(1) should not apply, it is inappropriate for the facts of a case to be resolved in the

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petitioner’s favor. See Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Sumner v. Mata, 449
U.S. 539, 547 (1981); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir. 2002); Dowthitt v. Johnson,
230 F.3d 733, 741 (5th Cir. 2000); Emery v. Johnson, 940 F.Supp. 1046, 1051 (S.D. Tex. 1996),
aff’d, 139 F.3d 191 (5th Cir. 1997). Consequently, where facts have been determined by the
Texas state courts, this Court is bound by such findings unless an exception to 28 U.S.C. § 2254
is shown.
III.

Analysis
Harris’ petition raises 11 claims for relief, including subclaims. These are addressed in

turn.
A.

Ineffective Assistance of Counsel

Harris raises four subclaims of ineffective assistance of trial counsel, and four subclaims
of ineffective assistance of appellate counsel.
1.

Trial Counsel

Harris contends that counsel failed to: a) seek a ballistics report for the gunshot into the
dashboard; b) present mitigating evidence; c) provide a proper defense; and d) challenge the
indictment. To prevail on a claim for ineffective assistance of counsel, Petitioner
must show that . . . counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed by the Sixth
Amendment. Second, the [petitioner] 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 v. Washington, 466 U.S. 668, 687 (1984). In order to prevail on the first prong of the
Strickland test, Petitioner must demonstrate that counsel’s representation fell below an objective
standard of reasonableness. Id. at 687-88. Reasonableness is measured against prevailing

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professional norms, and must be viewed under the totality of the circumstances. Id. at 688.
Review of counsel’s performance is deferential. Id. at 689.
A petitioner faces an especially high hurdle in raising an ineffective assistance of counsel
claim in a habeas corpus petition. Having already unsuccessfully raised this issue in state court,
Harris must not only meet the Strickland test, but must also demonstrate that the state court’s
adjudication of the claim was unreasonable.
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,’ id., at 689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7,
117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply
in tandem, review is ‘doubly’ so, Knowles [v. Mirzayance], 556
U.S. [111,] 123, 129 S.Ct. [1411], at 1420. The Strickland standard
is a general one, so the range of reasonable applications is
substantial. Id. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that counsel
satisfied Strickland 's deferential standard.
Premo v. Moore, 562 U.S 115, 122-23 (2011).
a.

Ballistics Report

In his first claim for relief, Harris contends that trial counsel rendered ineffective
assistance by failing to seek a ballistics report on the gunshot to the dashboard of Odom’s car.
Harris’ trial counsel, Steven Greenlee, submitted an affidavit in connection with Harris’ state
habeas corpus application in which Greenlee stated that he informed Harris that firing the gun
was not an element of the crime; the State had only to prove that he threatened the victim with

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the gun in the course of restraining the victim’s freedom. SH-02 (Doc. # 18-10) at 5.2 The state
habeas court found that counsel was not ineffective. Id. at 14-19.
Greenlee correctly stated the law.

“A person commits an offense [of aggravated

kidnapping] if the person intentionally or knowingly abducts another person and uses or exhibits
a deadly weapon during the commission of the offense.” TEX. PENAL CODE ANN. § 20.04. There
is no dispute that Harris had a gun during the kidnapping. Thus, whether the gunshot came from
his gun or not is irrelevant to the offense charged. Therefore, the failure to obtain a ballistics
report did not constitute deficient performance by counsel. Relief is denied on this claim.
b.

Failure to Present Mitigating Evidence

Harris next complains that counsel failed to investigate and obtain mitigating evidence.
Specifically, he refers to police and medical reports of a prior physical assault suffered by Harris.
Harris’ claim is not entirely clear, but it appears that he is arguing that counsel should
have presented evidence that Harris was assaulted some time before the kidnapping, and was
carrying the gun for self defense. As noted above, however, the evidence showed that Harris
used the gun to threaten Odom during the kidnapping. See, e.g., 3 Tr. at 28 (Angela Odom
testifying that Harris pointed the gun at her).3 Therefore, his reason for obtaining the gun was
irrelevant. Moreover, the prosecutor pointed out during his cross examination of Harris that it
was illegal for Harris to possess the gun because he had a prior felony conviction for arson. 4 Tr.
at 138. Harris therefore fails to demonstrate that his purported reason for obtaining the gun was
in any way mitigating, or that counsel was deficient for failing to present this information.

2

“SH” refers to the transcript of Harris’ state habeas corpus proceedings.

3

“Tr.” refers to the transcript of Harris’ trial.

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c.

Failure to Provide A Proper Defense

Harris next complains that counsel allowed what Harris characterizes as false gunshot
evidence, perjured testimony by Odom, and perjured expert witness testimony.

He also

complains that counsel failed to investigate the prior felony used for enhancement purposes.
As discussed above, the gunshot evidence is not material because evidence showed that
Harris threatened Odom with the gun. That threat was sufficient to support the conviction,
whether Harris fired the gun or not.
Harris points to what he characterizes as inconsistencies in Odom’s testimony as
evidence that she committed perjury. It is unclear what the alleged inconsistencies are, but
Harris’ supplemental brief in opposition to respondent’s motion for summary judgment indicate
that he is claiming inconsistencies in Odom’s testimony regarding the gunshot to her dashboard.
Assuming that Harris has identified inconsistencies in Odom’s testimony, this does not
demonstrate that she perjured herself. See, e.g., Koch v. Puckett, 907 F.2d 524, 531 (5th Cir.
1990). Moreover, as discussed above, the question of whether Harris fired the gun is not
material. Harris fails to demonstrate that Odom committed perjury. While Harris’ petition refers
to perjured expert witness testimony, a review of the record shows that no expert testimony was
offered.
Harris thus fails to demonstrate that any witness committed perjury or that any false
evidence was admitted. There was therefore no false evidence for counsel to challenge. and
Harris is not entitled to relief on this claim.
d.

Failure to Challenge the Indictment

Harris next complains that counsel failed to challenge the indictment. The petition is
unclear, but it appears that Harris believes that the incorrect use of a male pronoun to describe

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Odom, see SH-02 (Doc. # 18-10) at 28 (referring to “his” consent, and “intent to prevent ‘his’
liberation”) renders the indictment defective. He also complains that counsel failed to say
“anything about requisite of enhancements to show it is not mandatory in this case, nor necessary
since trial counsel only wanted to do plea deal.”
[A]n indictment is sufficient if it [1] contains the elements of the
offense charged and [2] fairly informs a defendant of the charge
against him, and [3] enables him to plead acquittal or conviction in
bar of future prosecutions for the same offense. Practical, not
technical, considerations govern the validity of an indictment, and
the test of the validity of an indictment is “not whether the
indictment could have been framed in a more satisfactory manner,
but whether it conforms to minimal constitutional standards.
United States v. Chaney, 964 F.2d 437, 446 (5th Cir. 1992) (internal quotation marks and
citations omitted). The incorrect use of male pronouns did not implicate any of these concerns.
Therefore, they did not render the indictment defective.
Harris’ complaint about the enhancement paragraph is unclear. The indictment contained
a single enhancement paragraph, stating that Harris was previously convicted of arson. Harris
pled true to the enhancement. He does not now contend that the enhancement paragraph was
inaccurate. He therefore identifies no basis for counsel to object to the enhancement. For the
foregoing reasons, Harris fails to demonstrate that trial counsel rendered deficient performance.
2.

Ineffective Assistance of Appellate Counsel

Harris contends that he received ineffective assistance of appellate counsel because
counsel failed to: a) review the record to determine the strongest issues for appeal; b) obtain a
ballistics report for the gunshot evidence; c) challenge the allegedly perjured testimony; and d)
challenge the indictment.

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A defendant is constitutionally entitled to effective assistance of appellate counsel when
he has a right to appeal under state law. Evitts v. Lucy, 469 U.S. 387, 395 (1985). The
Strickland two-prong standard applies to claims of ineffective assistance of appellate counsel.
Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992).
As discussed above, Harris’ complaints regarding the ballistics report, the allegedly
perjured testimony, and the indictment are all without merit. Because none of these issues
provides grounds for relief, appellate counsel was not deficient for failing to raise them. See,
e.g., Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995) (“Counsel cannot be deficient for
failing to press a frivolous point”); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (“This
Court has made clear that counsel is not required to make futile motions or objections.”). In
addition, because such claim would have been without merit, it is not reasonably probable that
counsel would have obtained any relief had the claims been presented.
Harris fails to identify any other specific claim that appellate counsel could or should
have raised. Appellate counsel is not required to raise every possible non-frivolous claim on
appeal. “Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at
most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). In light of Harris’
failure to identify any potentially meritorious claim not raised by appellate counsel, he fails to
demonstrate deficient performance. Therefore, Harris is not entitled to relief on his ineffective
assistance of appellate counsel claims.
B.

Prosecutorial Error

In his final two claims, Harris contends that the prosecutor introduced perjured testimony,
and failed to introduce a ballistics report to support what Harris characterizes as perjured

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testimony concerning the gunshot. “To constitute a due process violation, the prosecutorial
misconduct must be “‘of sufficient significance to result in the denial of the defendant’s right to a
fair trial.’”

Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting United States v. Bagley, 473

U.S. 667, 676 (1985) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)). “‘A trial is
fundamentally unfair if there is a reasonable probability that the verdict might have been
different had the trial been properly conducted.’” Barrientes v. Johnson, 221 F.3d 741, 753 (5th
Cir. 2000) (quoting Foy v. Donnelly, 959 F.2d 1307, 1317 (5th Cir. 1992)), cert. dismissed, 531
U.S. 1134 (2001). The Fifth Circuit has observed that a “prosecutor’s improper [conduct] will,
in itself, exceed constitutional limitations in only the most egregious cases.”

Menzies v.

Procunier, 743 F.2d 281, 288-89 (5th Cir. 1984).
A prosecutor may not knowingly use perjured testimony or allow such testimony to go
uncorrected. Giglio v. United States, 405 U.S. 150, 154 (1972); Napue v. Illinois, 360 U.S. 264,
269 (1959). To merit relief, Harris must show that the testimony was false, was material, and
that the prosecution knew it was false. Boyle v. Johnson, 93 F.3d 180, 185 (5th Cir. 1996).
As discussed above, Harris fails to demonstrate that any witness committed perjury. It
necessarily follows that, if the testimony was not perjured, then the prosecution cannot have
known that it was perjured. Moreover, as further discussed above, evidence concerning the
gunshot was not material because discharge of the weapon was not an element of the offense,
and there was other evidence that Harris threatened Odom with the gun. Harris therefore fails to
demonstrate any prosecutorial error rising to the level of a constitutional violation.
C.

Evidentiary Hearing

Harris has also filed a motion for an evidentiary hearing. An evidentiary hearing is not
required if there are “no relevant factual disputes that would require development in order to

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assess the claims.” Williams v. Taylor, 529 U.S. 420, 436 (2000) (stating that it was “Congress’
intent to avoid unneeded hearings in federal habeas corpus”); Robison v. Johnson, 151 F.3d 256,
268 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). “If it appears that an evidentiary hearing
is not required, the judge shall make such disposition of the petition as justice shall require.”
Rules Governing Section 2254 Cases R. 8. Petitioner has not demonstrated any factual dispute
that would entitle him to relief. See Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996). Each of
Petitioner’s claims can be resolved by reference to the state court record, the submissions of the
parties, and relevant legal authority. There is no basis upon which to hold an evidentiary hearing
on these claims
IV.

Conclusion
For the foregoing reasons, respondent’s motion for summary judgment is granted, Harris’

motion for an evidentiary hearing is denied, and Harris’ petition is dismissed with prejudice.
V.

Certificate of Appealability
Harris has not requested a certificate of appealability (“COA”), but this Court may

determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly lawful for district court’s [sic] to
deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely
states that an appeal may not be taken without a certificate of appealability having been issued.”)
A petitioner may obtain a COA either from the district court or an appellate court, but an
appellate court will not consider a petitioner’s request for a COA until the district court has
denied such a request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also
Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he district court should continue to review
COA requests before the court of appeals does.”). “A plain reading of the AEDPA compels the

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conclusion that COAs are granted on an issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998). A petitioner “makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues are suitable enough to deserve encouragement to
proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S.
966 (2000). The Supreme Court has stated that:
Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The 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).
This Court has carefully considered Harris’ petition and concludes that Harris fails to
make a substantial showing of the denial of a constitutional right. The court concludes that
jurists of reason would not find this Court’s ruling debatable. This Court concludes that Harris is
not entitled to a certificate of appealability.
VI.

Order
For the foregoing reasons, it is ORDERED as follows:
A.

Respondent William Stephens’ motion for summary judgment (Dkt. No. 23) is
GRANTED;

B.

Petitioner Daniel Harris’ petition for a writ of habeas corpus (Dkt. No. 1) is
DISMISSED WITH PREJUDICE;

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C.

Petitioner Daniel Harris’ motion for an evidentiary hearing (Dkt. No. 15) is
DENIED; and

D.

No certificate of appealability shall issue.

The Clerk shall notify all parties and provide them with a true copy of this Memorandum
and Order.
SIGNED on this 23rd day of March, 2016.
___________________________________
Kenneth M. Hoyt
United States District Judge

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