Bryant v. Stephens

Filing 14

MEMORANDUM OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus, granting 11 MOTION for Summary Judgment with Brief in Support. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

RONNIE BRYANT, TDCJ #1810399,
Petitioner,
v.

LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§
§

September 21, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-0841

MEMORANDUM OPINION AND ORDER

The petitioner, Ronnie Bryant, has filed a Petition for a Writ
of Habeas Corpus By a Person in State Custody ("Petition")

(Docket

Entry No. 1) seeking relief from a state court conviction.

Pending

before the court is Respondent's Motion for Summary Judgment with
Brief

in Support

("Respondent's

(Docket Entry No. 11).
to do so has expired.

Motion

for

Summary

Judgment")

Bryant has not filed a reply and his time
After considering all of the pleadings, the

state court record, and the applicable law,

the court will grant

Respondent's Motion and will dismiss this action for the reasons
explained below.
I.

Background

A grand jury returned an indictment against Bryant in Harris
County cause number 1338550, charging him with aggravated assault

with a

deadly weapon

member. 1
with

a

ceramic

against

plate

a

family

The indictment was enhanced for purposes of punishment

allegations

convictions

for

that

Bryant

possession

of

had
a

at

least

controlled

unlawful possession of a firearm as a felon.
District Court for Harris County,

Texas,

2

two

prior

substance

felony
and

for

A jury in the 338th

found Bryant guilty as

charged and found that a deadly weapon was used to commit the
offense. 3

During the punishment phase of

the

abandoned one of the enhancement allegations. 4

trial

the state

Bryant admitted

that the other enhancement allegation was true and also stipulated
that he had a substantial record of previous convictions. 5

The

trial court sentenced Bryant to 12 years' imprisonment. 6
On direct appeal Bryant argued that the evidence was legally
insufficient to support the jury's finding that the ceramic plate
used in the commission of the offense was a deadly weapon. 7

1

Indictment, Docket Entry No. 13-25, p. 34.

3

Judgment

The

of

Conviction by Jury,

Docket

Entry No.

13-25,

Docket Entry No.

12-13,

p. 35.
4

Court Reporter's Record,

vol.

4,

p. 6.
5

Id. at 7-8; State's Exhibit 14,
Docket Entry No. 12-20, pp. 12-13.
6

Judgment

of

Conviction by Jury,

Stipulation of Evidence,
Docket

Entry No.

p. 35.
7

Brief for Appellant, Docket Entry No. 13-2, p. 8.
-2-

13-25,

intermediate

state

court

of

appeals

rejected

that

claim after

summarizing the evidence presented at trial:
Carol Pitts married Ronnie Bryant on Valentine's Day
2012.
Bryant suspected Pitts was having an affair,
though she denied it.
Two weeks after their wedding,
they were sitting in bed, watching television, and eating
dinner off of trays.
Pitts testified that Bryant was
talking on the phone and then things "took a
bizarre turn." She said, "[I]t went from 'Hi, Honey,' to
really bizarre in like three minutes." Bryant told her,
"I'm going to love you the way you love me," but Pitts
did not immediately understand what he meant.
He came
around to her side of the bed and grabbed her plate. As
she put her arm up to block her face, he hit her arm with
the plate, causing the plate to break.
Her arm was
lacerated, and she began bleeding heavily.
At trial, the prosecutor asked Pitts where Bryant was
aiming when he assaulted her:
Q.
Where on your body was he aiming with the
plate?
A.
I don't know where he was aiming, but it
hit my arm.
Q.
Where was your arm? Was it laying down or
was it up?
A.
Just a defense mechanism.
When he picked
it up, I did this (demonstrating) .
Q. So your arm is blocking your face; is that
right, for the record?
A.

Uh-huh.

Q.
We have to say "yes" or "no."
I'm sorry,
Ms. Pitts, I should have told you that.
So
you were blocking your face with your arm.
Which arm was it?
A.

This arm (indicating) .

Q.

Your right one?

-3-

A.

Yes.

You were blocking your face with your
right arm. What did - did he have one hand or
two hands on your plate?

Q.

A.

Just one.

Q.
Show with a motion with your hand the way
the defendant slammed the plate on you.
A. It came down like this and broke on my arm
(demonstrating) .
Q. So did he hit it in a motion that ended up
hitting your arm, or did he throw it somewhere
else, or did he aim at you?
A.

He aimed at me.

Pitts testified that Bryant then took a piece of the
broken plate and motioned "like he was going to stab me
with it." Moments later, Bryant left the room, returned
with knife, and again made stabbing motions.
Pitts
testified, "I thought he was going to stab me with it."
At that time, she was lying on the bed, bleeding
profusely, keeping her feet on Bryant's chest to keep him
away.
Pitts managed to get away from him, examine her
wounds in the bathroom, and change her blood- soaked
clothing.
She went outside, sat on the steps near her
apartment,
and called 9-1-1 due to the excessive
bleeding. At trial she testified that she called 9-1-1
because she "didn't want to die."
Within ten minutes of her phone call, Harris County
Sheriff's Deputy F. Salizar, Jr. arrived to find her
sitting on the steps with her arm wrapped in a
blood-soaked towel and her hands covered in blood.
Salizar said it looked like there was one big cut on her
arm but "[i]t could have been more." He testified that
she was crying, "very distraught," "very upset," and "in
a state of shock."
Pitts told Salizar that Bryant
assaulted her and cut her with a ceramic plate. She also
told him that Bryant "just took off running down the
street" when he saw the sheriff approaching.
-4-

After making sure that Bryant was not inside the couple's
apartment,
Salizar
joined
the
search
for
him.
Approximately 15 minutes after speaking to Pitts, Salizar
found Bryant crouched behind a minivan parked in a nearby
residential area.
After identifying himself, Bryant
said, "I wasn't doing nothing. What are you stopping me
for?" He was placed into a patrol car and taken to the
apartment, where Pitts identified him before being taken
by ambulance to the emergency room.
Pitts spent three days in the hospital, where she
underwent orthopedic surgery. She had three cuts on her
arm, two of which went all the way down to the bone. She
also suffered joint damage.
Bryant v. State, No.
App.

01-12-00921-CR, 2013 WL 6506302,

*1-2

(Tex.

Houston [1st Dist.] Dec. 10, 2013, no pet.)
On state collateral review, Bryant argued that he was entitled

to relief from his conviction under Article 11.07 of the Texas Code
of Criminal Procedure because he was denied effective assistance of
counsel at his

trial. 8

The state habeas

corpus

court entered

findings of fact and concluded that Bryant was not entitled to
relief on any of his claims. 9

The Texas Court of Criminal Appeals

agreed and denied relief without a written order on findings made
by the trial court. 10
Bryant has now filed a
relief under 28 U.S.C.

8

Application for
No. 13-25, pp. 10-14.

Petition for federal habeas corpus

2254, arguing that he was denied effective

§

a

Writ

of

Habeas

Corpus,

Docket

Entry

9

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 13-25, pp. 38-43.
10

Action Taken on Writ No. 80,718-03, Docket Entry No. 13-24,

p. 1.
-5-

assistance

of

counsel

at

trial. 11

his

In

particular,

Bryant

contends that his counsel was constitutionally ineffective because
she did not (1) argue that the charges were "false"; (2) argue that
the ceramic plate was not used as a deadly weapon and that the
injury was the result of an "accident";

tell the trial court

(3)

that Bryant was under the care of the Veteran's Administration for
Post Traumatic Stress Disorder ("PTSD"); and
enhancement

allegations

therefore invalid. 12

were

for

(4)

"unrelated

object that the

convictions"

and

Noting that these claims were rejected on the

merits in state court, the respondent moves for summary judgment
and

argues

that

Bryant

is

not

entitled

to

relief

under

the

governing federal habeas corpus standard of review. 13
II.

Standard of Review

To the extent that the petitioner's claims were adjudicated on
the merits in state court, his claims are subject to review under
the

Antiterrorism

("AEDPA"),

and

Effective

codified at 28 U.S.C.

Death
§

2254

Penalty
(d).

Act

of

1996

Under the AEDPA a

federal habeas corpus court may not grant relief unless the state
court's adjudication "resulted in a decision that was contrary to,
or involved an unreasonable application of,

11

clearly established

Petition, Docket Entry No. 1, pp. 6-7.

lzid.
13

Respondent' s
No. 11.

Motion

for

Summary
-6-

Judgment,

Docket

Entry

federal

law,

as

United States [.] "

determined
28

u.s.c.

the

by

Supreme

2254 (d) (1) .

§

Court

of

the

"A state court's

decision is deemed contrary to clearly established federal law if
it reaches a
decision

of

legal conclusion in direct conflict with a prior
the

Supreme

Court

or

if

it

reaches

a

different

conclusion than the Supreme Court on materially indistinguishable
facts."

Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)

(citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495,
1519-20

To constitute an "unreasonable application of"

(2000).

clearly established federal law, a state court's holding "must be
objectively unreasonable, not merely wrong; even clear error will
not

suffice."

Woods v.

(quoting White v.

Donald,

Woodall,

satisfy this high bar,

134 S.

135
Ct.

S.

Ct.

1697,

1372,
1 7 02

1376

(2015)

( 2 o14 ) ) .

"To

a habeas petitioner is required to 'show

that the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.'"

Id. (quoting Harrington

v. Richter, 131 S. Ct. 770, 786-87 (2011))
The
evaluating

AEDPA

"imposes

state-court

a

'highly

rulings, '

deferential
[which]

standard
'demands

state-court decisions be given the benefit of the doubt.'"
v. Lett, 130 S. Ct. 1855, 1862 (2010)

(citations omitted).

for
that

Renico
This

standard is intentionally "difficult to meet" because it was meant
to bar relitigation of claims already rejected in state proceedings
-7-

and to preserve federal habeas review as "a 'guard against extreme
malfunctions

in

the

state

criminal

justice

systems,'

substitute for ordinary error correction through appeal."
131 S. Ct. at 786
2796, n.5

(1979)

(quoting Jackson v. Virginia,

not

a

Richter,

99 S. Ct. 2781,

(Stevens, J., concurring)); see also White, 134

s. Ct. at 1702.
A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
"presumed
findings
§

to
with

2254 (e) (1).

be

correct"

"clear

unless

and

Findings of fact are

the

petitioner

convincing

rebuts

evidence."

28

those

u.s.c.

This presumption of correctness extends not only to

express factual findings, but also to the state court's implicit
findings.
2006)

See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.

(citing Summers v. Dretke, 431 F. 3d 861, 876 (5th Cir. 2005);

Young v. Dretke, 356 F.3d 616, 629
presents a question of fact,

(5th Cir. 2004)).

If a claim

a petitioner cannot obtain federal

habeas relief unless he shows that the state court's denial of
relief "was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."

u.s.c.

§

2254 (d) (2).

characterize

these

A federal

habeas

state-court

corpus

factual

court

28

"may not

determinations

as

unreasonable 'merely because [it] would have reached a different
conclusion in the first instance.'"
2269,

2277

(2015)

(quoting Wood v.

-8-

Brumfield v. Cain, 135 S. Ct.
Allen,

130 S.

Ct.

841,

849

(2010)).

"Instead,

§

2254(d) (2)

requires that

[a federal court]

accord the state trial court substantial deference."
III.

Id.

Discussion

In four separate claims for relief, Bryant alleges that he was
denied effective assistance of counsel at his trial.
were rejected by the state habeas corpus court,
Bryant

failed

to

demonstrate

ineffective

These claims

which held that

assistance

under

the

standard found in Strickland v. Washington, 104 S. Ct. 2052, 2064
(1984) . 14
As the state court correctly observed, claims for ineffective
assistance

of

Strickland.

counsel

See,

are

governed

e.g., Williams v.

by

the

standard

Stephens,

found

761 F.3d 561,

(5th Cir. 2014), cert. denied, 135 S. Ct. 1735 (2015).

in
566

To prevail

under the Strickland standard a defendant must demonstrate (1) that
his counsel's performance was deficient and (2) that the deficient
performance prejudiced the defense.

104 S.

Ct.

at

"Unless a defendant makes both showings, it cannot be said

2064.
that

Strickland,

the

conviction

resulted

from

a

breakdown

adversary process that renders the result unreliable."
"To satisfy the deficient performance prong,

in

the

Id.

'the defendant

must show that counsel's representation fell below an objective
standard of reasonableness.'"

Hoffman v. Cain, 752 F.3d 430, 440

14

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 13-25, pp. 40-41.
-9-

(5th Cir.
denied,

2014)

(quoting Strickland,

135 S. Ct. 1160

(2015) .

104 S. Ct. at 2064),

cert.

This is a "highly deferential"

inquiry; "[t]here is 'a strong presumption that counsel's conduct
falls

within

assistance.'"

the
Id.

wide

range

of

reasonable

professional

(quoting Strickland, 104 S. Ct. at 2065).

"To

satisfy the prejudice prong, '[t]he defendant must show that there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'"
Id.

(quoting Strickland, 104 S. Ct. at 2068).
Because Bryant's ineffective-assistance claims were rejected

in state court, the issue is not whether this court "'believes the
state court's determination'
incorrect but whether that
substantially higher
S.

Ct.

1411,

1420

under the Strickland standard 'was
determination was

threshold. '"
(2009)

Knowles

(quotation

unreasonable -

v.

omitted)

Mirzayance,
In

has

even

more

latitude

to

reasonably

defendant has not satisfied that standard."

determine

Id.

129

addition,

"because the Strickland standard is a general standard,
court

a

a state
that

a

When applied in

tandem with the highly deferential standard found in 28 U.S.C.
§

2254 (d),

review of

ineffective-assistance

deferential" on habeas corpus review.

claims

is

"doubly

Knowles, 129 S. Ct. at 1411;

see also Richter, 131 S. Ct. at 788 (emphasizing that the standards
created by Strickland and§ 2254(d) are both "highly deferential,"
and "'doubly' so" when applied in tandem)

-10-

( citations and quotations

omitted)

i

Beatty v. Stephens,

759 F.3d 455, 463

cert. denied, 135 S. Ct. 2312 (2015)
1.

(5th Cir. 2014),

(same).

Failure to Contest the Charges (Claims One and Two)

In his first claim for relief Bryant contends that his defense
counsel was deficient for failing to argue that the charges were
"false" because he did not intentionally and knowingly cause bodily
injury with the ceramic plate. 15

In his second claim for relief

Bryant contends that defense counsel was deficient for failing to
argue that the ceramic plate was not used as a deadly weapon and
that the injury was accidental. 16

In both of these claims Bryant

essentially contends that his counsel failed to contest the charges
against him.

This contention is refuted by the record.

Bryant's wife testified that he attacked her, striking her on
the arm with the ceramic plate as she shielded her face, severely
lacerating her
injured arm

arm. 17

show

that

Medical
Bryant

records
inflicted

and photographs
a

garish wound,

of

her

which

required surgery to repair. 18 Defense counsel successfully objected
to the prosecutor's attempt to elicit testimony about whether the

15

Peti tion, Docket Entry No. 1, p. 6.

16

Id.

17

Court Reporter's Record,
pp. 46-58.

vol.

18

3,

Docket Entry No.

12-12,

Photographs, Docket Entry No. 12-14, pp. 2-Si Medical
Records, Docket Entry Nos. 12-15, pp. 17, 19-20i Medical Records
(cont'd), Docket Entry No. 12-16, pp. 30-35.
-11-

ceramic
injury . 19

plate

was

capable

Defense

counsel

of

causing death or

also

successfully

serious

objected

bodily
to

the

prosecutor's attempt to characterize Bryant's behavior during the
incident as bizarre or to imply that he had been drinking on the
night of the offense. 20
counsel moved for a

At the close of the state's case, defense

directed verdict and noted that

the state

failed to present any testimony showing that the ceramic plate
qualified as a deadly weapon capable of causing serious bodily
injury. 21

During her summation, defense counsel argued that there

was no evidence showing that Bryant intended to cause death or
serious bodily injury and no support for a finding that the plate
was used as a deadly weapon during the offense. 22
record,

Based on this

which shows that defense counsel actively contested the

charges, the state habeas corpus court found that defense counsel
provided effective representation. 23
Bryant does not suggest what else his defense counsel could
have done to challenge the evidence against him and his conclusory
allegations do not demonstrate that defense counsel's strategy was

19

Court Reporter's Record,
pp. 35-37.
20

Docket Entry No.

12-12,

Id. at 67-76.

22

3,

Id. at 45, 49, 51.

21

vol.

Id. at 94-96.

23

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 13-25, p. 39.
-12-

deficient or prejudicial.
(emphasizing that

See Strickland,

104 S.

Ct.

at 2065

"[j] udicial scrutiny of counsel's performance

must be highly deferential" and that "every effort [must] be made
to eliminate the distorting effects of hindsight") ;
v. Collins,

985 F.2d 222, 228

(5th Cir. 1993)

see also Yohey

("Given the almost

infinite variety of possible trial techniques and tactics available
to counsel, this Circuit is careful not to second guess legitimate
strategic choices.").

Bryant does not otherwise demonstrate that

the state court's decision to reject this claim was unreasonable or
lacking in justification.
Accordingly,

See Richter,

131 S.

Ct.

at

786-87.

Bryant is not entitled to relief on his claim that

counsel failed to contest the charges against him.
2.

Failure to Present Mitigating Evidence of his Status as
a Veteran with PTSD (Claim Three)

In his third claim for relief Bryant contends that his defense
attorney was deficient at the punishment phase of the trial for
failing

to

tell

the

court

that

he

was

under

the

care

of

the

Veteran's Administration Hospital due to PTSD. 24 The state habeas
corpus court rejected this claim, finding that the trial court was
made aware of Bryant's mental health issues
military service before

sentence was

stemming from his

pronounced. 25

The

record

supports the state habeas corpus court's finding.

24

Petition, Docket Entry No. 1, p. 7.

25

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 13-25, p. 39.
-13-

The record shows

that Bryant testified on his

own behalf

during the punishment phase of the trial, advising the trial court
that he enlisted as a United States Marine at the age of 17, served
in

active

combat

discharged. 26

during

the

Vietnam

war,

and

was

honorably

Bryant testified further that he had been periodi-

cally treated by a psychologist at the Veteran's Administration
Hospital due to the effects of the war,

which also featured a

lengthy struggle with drug addiction. 27

Therefore,

the

record

confirms that the trial court considered this information before
imposing sentence.
Bryant does not present any additional evidence in support of
his claim,

and he does not otherwise demonstrate what else his

defense counsel could have done to present mitigating evidence on
his behalf.

Absent a showing of deficient performance, Bryant does

not show that he was denied effective assistance of counsel in
connection with his sentencing proceeding or that the state habeas
corpus court's decision was unreasonable.

Accordingly, he is not

entitled to relief on this claim.
3.

Failure to Object to Enhancement Allegations (Claim Four)

Finally, in his fourth claim for relief Bryant contends that
his defense counsel was deficient for failing to object or allowing

26

Court Reporter's Record,
pp. 9-10.
27

Id.

vol.

at 10-13, 18.
-14-

4,

Docket Entry No.

12-13,

the trial court to enhance his sentence with "two prior unrelated
convictions. " 28
The state habeas corpus court found that Bryant failed to
provide

facts

improperly. 29

to

demonstrate

that

his

sentence

was

enhanced

The federal Petition filed by Bryant likewise fails

to specify how his sentence was wrongfully enhanced; and he does
not otherwise establish that his counsel had, but failed to make,
a valid objection. 30

His "conclusory allegations of ineffective

assistance of counsel do not raise a constitutional issue in a
federal habeas proceeding."
(5th Cir. 2002)

Collier v. Cockrell, 300 F.3d 577, 587

(citing Miller v. Johnson, 200 F.3d 274, 282 (5th

Cir. 2000); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)).
Bryant does not challenge the state court's findings or show that
its decision to reject this claim was unreasonable.

Therefore, he

is not entitled to relief on this claim.

28

Peti tion, Docket Entry No. 1, p. 7.

29

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 13-25, p. 40.
30

Bryant was convicted of aggravated assault of a family member
with a deadly weapon, which is a second-degree felony.
See TEX.
PENAL CODE§ 22.02(a) (2) and (a). As noted above, the record shows
that the state agreed to abandon one of the enhancement
allegations, asserting a prior second-degree felony conviction for
possession of a controlled substance. See Court Reporter's Record,
vol. 4, p. 6.
Bryant does not show that the other prior felony
conviction for unlawful possession of a firearm was invalid for
purposes of enhancing his sentence, which was well within the
applicable range of punishment.
See TEx. PENAL CODE § 12.42 (b)
(providing that a second-degree felony enhanced by one prior felony
conviction is punishable as a first-degree felony under TEx. PENAL
CoDE § 12.32 by imprisonment for life or any term of not less than
five years) .
-15-

Because Bryant has

failed to establish a

valid claim for

relief, Respondent's Motion for Summary Judgment will be granted
and the Petition will be denied.
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.

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.

demonstrate

"that

2253 (c) (2),

§

reasonable

would

the

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

controlling standard this

Ct.

1595,

requires

a

1604

claims

district

wrong."

120 S.

constitutional

find

assessment

McDaniel,

the

jurists

court's

Slack v.

of

which requires a petitioner to

debatable

(2000)).

petitioner to

or

(quoting
Under the

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

encouragement to proceed further.'"
S.

Ct.

1029,

1039

(2003)

were

'adequate

Miller-El v.

to

deserve

Cockrell,

123

Where denial of relief is based on

procedural grounds, the petitioner must show not 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

correct in its procedural ruling."
-16-

the

district

court

Slack, 120 S. Ct. at 1604.

was

A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.
Alexander v. Johnson,

211 F.3d 895,

898

(5th Cir.

2000).

See
After

careful review of the pleadings and the applicable law, the court
concludes that reasonable jurists would not find the assessment of
the

constitutional

claims

debatable

or

wrong.

Because

the

petitioner does not allege facts showing that his claims could be
resolved in a different manner, a certificate of appealability will
not issue in this case.
V.

Conclusion and Order

The court ORDERS as follows:
1.

Respondent's Motion for Summary Judgment
Entry No. 11) is GRANTED.

(Docket

2.

Ronnie Bryant's Petition for a Writ of Habeas
Corpus by a Person in State Custody (Docket Entry
No. 1) is DENIED, and this action will be dismissed
with prejudice.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, this 21st day of September, 2016.

UNITED STATES DISTRICT JUDGE

-17-