Burgess v. Davis
Filing
23
MEMORANDUM OPINION AND ORDER granting 14 MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. 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
ODELL BURGESS, TDCJ #579316,
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
March 24, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-2470
MEMORANDUM OPINION AND ORDER
State inmate Odell Burgess has filed a Petition for a Writ of
Habeas Corpus By a
Person in State Custody
("Petition") (Docket
Entry No. 1) and Petitioner Memorandum of Law on Points of Ground's
in Argument's
to
Support
His
28
u.S. c.
2254
§
Habeas
Corpus
Application for Habeas Relief ("Petitioner's Memorandum")
Entry No.
6)
seeking relief under 28 U.S.C.
court conviction.
§
(Docket
2254 from a state
The respondent has filed a Motion for Summary
Judgment with Brief in Support ("Respondent's MSJ")
(Docket Entry
No. 14), along with a copy of the state court records (Docket Entry
Nos.
13,
22) .
Burgess
has
filed
Petitioner
Response
to
Respondent's Motion for Summary Judgment ("Petitioner's Response")
(Docket Entry No. 18).
court
record,
and
the
After considering the pleadings, the state
applicable
Respondent's MSJ and will dismiss
explained below.
law,
the
court
this action for
will
the
grant
reasons
I.
Background
A local grand jury returned an indictment against Burgess in
Harris
County cause number 1376308,
charging him with evading
arrest or detention with a motor vehicle . 1
The indictment was
enhanced for purposes of punishment with allegations that Burgess
had two prior felony convictions for aggravated robbery in 1991 and
1982. 2
At trial the State presented evidence showing that Burgess
attempted to evade arrest by fleeing
participating in a robbery. 3
Harris County,
Texas,
in a motor vehicle after
A jury in the 180th District Court of
found Burgess guilty as charged. 4
After
Burgess admitted that the enhancement allegations were "true," the
same jury sentenced him to 53 years' imprisonment. 5
On direct appeal Burgess challenged the sufficiency of the
evidence and the admission of evidence about the extraneous robbery
offense during the guilt-innocence phase of the trial, among other
issues. 6
An
Burgess's
claims
opinion.
1
intermediate
and
court
affirmed
of
the
appeals
conviction
rejected
in
See Burgess v. State, 448 S.W.3d 589, 605
a
all
of
published
(Tex. App. -
Indictment, Docket Entry No. 13-4, p. 16.
3
Court Reporter's Record, vol.
pp. 8-88 (State's case-in-chief).
3,
Docket
Entry No.
13-9,
4
Judgment of Conviction by Jury, Docket Entry No. 22-1, p. 28.
5
Id.
6
Appellant's Brief, Docket Entry No. 13-2, p. 7.
-2-
Houston [14th Dist.]
2014, no pet.).
In doing so,
the court of
appeals summarized the evidence presented at trial, which detailed
Burgess's efforts to evade arrest following a robbery:
According to the State's evidence, at approximately
6:30 p.m. on September 7, 2012, Houston police officer
Marc Stallworth was seated in his police car at a
business on the westbound feeder of the South Loop
freeway.
He heard a "rush of air" from the freeway,
which he associated with a speeding vehicle. He noticed
a black pickup truck, which was travelling westbound on
the freeway,
exit at Stella Link Road.
Officer
Stallworth estimated the vehicle was travelling over 100
miles per hour.
[Burgess] was later identified as the
driver, and there were two male passengers.
Officer
Stallworth entered his police car and followed the truck.
[Burgess] then used the Stella Link u-turn to begin
travelling eastbound on the feeder.
After Officer
Stallworth completed the u-turn, he activated his lights
and siren. At that point, he was four car lengths behind
the truck, with no other vehicles in between.
[Burgess]
immediately "floor [ed] it" - from about 45 miles per hour
(his speed when making the u-turn) to about 65 miles per
hour.
The occupants also threw items out of the truck
onto the side of the feeder.
[Burgess] 's speed then
varied between 50 to 65 miles per hour as he wove through
traffic,
with Officer Stallworth in pursuit,
for
approximately half a mile.
There were several side
streets and businesses along the feeder where [Burgess]
could have safely stopped, but he failed to do so.
He
continued toward the next intersection - the feeder and
South Main Street - where traffic was backed up at the
light.
[Burgess] turned into the parking lot of a service
station located on the corner of that intersection. He
wove through vehicles in the lot and attempted to turn
right onto South Main. A constable who had observed the
activity used his car to cut off the truck and forced it
back into the parking lot.
[Burgess] then attempted to
exit back onto the feeder but stopped when he was cut off
by another police car that had joined the pursuit. The
officers ordered the occupants to exit the truck, and
[Burgess] was arrested, without further incident.
The State also presented evidence that, within twenty
minutes
before
Officer Stallworth's
pursuit,
the
-3-
occupants of the truck committed a robbery, less than
five miles from where they were eventually detained.
Claudine James was seated in her vehicle in the parking
lot of a post office when she saw another woman park her
"two-seat" Mercedes and enter the post office. Then, a
black pickup truck drove up and blocked the woman's car.
A passenger (not [Burgess]) exited the truck, looked
around, and entered the woman's car. A "child, a young
girl" then "jumped" out of the car, screaming, with eyes
as "big" as "plates."
The man took a purse and cell
phone from the car and re-entered the truck, and the
driver left.
James followed the truck as it traveled at an extreme
speed on the South Loop but eventually lost sight of it
near the Stella Link exit.
When James took that exit,
she intended to alert Officer Stallworth whom she saw on
the feeder, but he then activated his lights and
u-turned.
James did not observe Officer Stallworth's
chase and next saw the truck when it had been stopped at
the service station. James informed the officers about
the robbery and identified [Burgess] 's truck as the one
involved and one of his passengers as the man who entered
the woman's car at the post office.
In the area where Officer Stallworth had observed the
occupants throw items from the truck, officers found a
purse and business cards belonging to the robbery victim.
The officers' testimony indicated that a $100 bill found
in one of the truck passenger's shoes was stolen in the
robbery. The officers also found three new $100 bills in
[Burgess] 's pocket.
Id. at 594-95.
Burgess did not appeal further by filing a petition
for discretionary review with the Texas Court of Criminal Appeals. 7
Burgess challenged his conviction by filing an Application for
a Writ of Habeas Corpus under Article 11.07 of the Texas Code of
Criminal Procedure. 8
In his Application Burgess argued that the
7
8
Final
Respondent's Exhibit A, Docket Entry No. 15, p. 2.
Application for a Writ of Habeas Corpus Seeking Relief From
Felony Conviction Under Code of Criminal Procedure,
-4-
prosecutor
committed
error
by
introducing
evidence
of
the
extraneous robbery because he failed to present sufficient proof
that Burgess committed the offense. 9
Burgess also argued that he
was denied his constitutional right to confront and cross-examine
witnesses. 10
Burgess also argued that he was denied effective
assistance of counsel when his
trial attorney:
( 1)
failed to
request a limiting instruction regarding the extraneous robbery
offense;
(2)
advised
him
not
to
testify;
and
(3)
failed
to
investigate or interview the state's witnesses . 11 After considering
an affidavit from Burgess's defense attorney , 12 the state habeas
corpus court entered findings of fact and concluded that Burgess
was not entitled to relief on any of his claims. 13
The Texas Court
of Criminal Appeals agreed and denied relief without a written
order on findings made by the trial court. 14
Burgess has now filed a Petition for federal habeas corpus
relief under 28 U.S; C.
9
§
2254
from his conviction for evading
Id. at 14-15.
10
Id. at 16-19.
11
Id. at 7-10,
16-17.
12
Affidavit of Michael
Entry No. 13-16, pp. 17-22.
Slider
("Slider Affidavit"),
Docket
13
State' s Proposed Findings of Fact, Conclusions of Law and
Order After Remand ("FFCL"), Docket Entry No. 13-16, pp. 25-29.
14
Action Taken,
Writ No.
12,460-12,
p. 1.
-5-
Docket Entry No.
13-11,
arrest with a motor vehicle. 15
He raises the same claims that were
rejected on the merits on state habeas review. 16
The respondent has
filed a Motion for Summary Judgment, arguing that Burgess's claims
are without merit
and
that
relief
is
not
warranted under
the
governing federal habeas corpus standard of review. 17
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
§
Penalty
2254 (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,
federal
law,
as
United States [.] "
determined
28
u.s.c.
by
the
Supreme
2254 (d) (1).
§
clearly established
Court
of
"A state
the
court's
decision is deemed contrary to clearly established federal law if
it reaches a
decision
of
legal conclusion in direct conflict with a
the
Supreme
Court
or
if
it
reaches
a
prior
different
conclusion than the Supreme Court on materially indistinguishable
facts."
Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
15
Petition, Docket Entry No. 1, p. 2.
16
Id. at 7-19.
17
Respondent's MSJ, Docket Entry No. 14.
-6-
(citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495,
1519-20
(2002) .
To constitute an "unreasonable application of"
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 S.
Ct.
Ct.
1697,
1372,
1702
1376
(2015)
(2014)).
"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)
for
that
Renico
(citations omitted).
This
standard is intentionally "difficult to meet" because it was meant
to bar relitigation of claims already rejected in state proceedings
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
27 96, n. 5 ( 197 9)
(quoting Jackson v. Virginia,
not
a
Richter,
99 S. Ct. 2781,
(Stevens, J. , concurring) ) ; see also White, 134
S. Ct. at 1702.
-7-
A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
"presumed
findings
§
to
be
with
2254 (e) (1).
correct"
"clear
and
2006)
the
petitioner
convincing
rebuts
evidence."
28
those
u.s.c.
This presumption of correctness extends not only to
express factual findings,
findings.
unless
Findings of fact are
but also to the state court's implicit
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,
If a claim
(5th Cir. 2004)).
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
unreasonable 'merely because
factual
[it]
2277
(2010)).
(2015)
"Instead,
(quoting Wood v.
§
2254 (d) (2)
court
determinations
A.
as
Brumfield v. Cain, 135 S. Ct.
Allen,
130 S.
requires that
Ct.
841,
849
[a federal court]
accord the state trial court substantial deference."
III.
"may not
would have reached a different
conclusion in the first instance.'"
2269,
corpus
28
Id.
Discussion
Prosecutorial Error
Burgess
contends
that
the
prosecutor
committed
error
by
introducing evidence of his participation in the extraneous robbery
-8-
because he failed to present sufficient proof that he committed the
robbery. 18
of
the
The state court of appeals considered the admissibility
extraneous
properly admitted.
offense
evidence
and
concluded
that
See Burgess, 448 S.W.3d at 599-601.
it
was
Likewise,
the state habeas corpus court summarily denied relief on Burgess's
claim of prosecutorial misconduct, concluding that he "failed to
demonstrate that his conviction was improperly obtained. " 19
A claim of prosecutorial error or misconduct is actionable on
federal
habeas
infected
the
review
trial
only
with
where
the
unfairness
as
conviction a denial of due process."
s. Ct. 2464, 2471 (1986)
S.
Ct.
1868,
1871
alleged
to
make
misconduct
the
resulting
Darden v. Wainwright,
(quoting Donnelly v. DeChristoforo,
(1974))
(internal
quotation marks
accord Greer v. Miller, 107 S. Ct. 3102, 3109 (1987).
"so
106
94
omitted);
Due process
is not violated unless the alleged conduct deprived the petitioner
of his right to a fair trial.
Darden,
106
s. Ct. at 2471.
"A
trial is fundamentally unfair if 'there is a reasonable probability
that the verdict might have been different had the trial been
properly conducted.'"
Cir. 1992)
1988)
Foy v. Donnelly, 959 F.2d 1307, 1317 (5th
(quoting Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir.
(citation omitted)).
The error alleged by Burgess concerns the admission of an
extraneous
offense.
The
introduction
of
extraneous
18
Petition, Docket Entry No. 1, pp. 12, 14.
19
FFCL, Docket Entry No. 13-16, p. 28.
-9-
offense
evidence does not violate the Due Process Clause if the State
(1)
makes
offense";
"a
and
strong showing
(2)
that
demonstrates
"rationally connected with the
Procunier,
the
that
defendant
the
committed
extraneous offense
offense charged."
752 F.2d 111, 115 (5th Cir. 1984)
the
is
Enriquez v.
(citation omitted);
accord Wood v. Quarterman, 503 F. 3d 408, 414 (5th Cir. 2007); Story
v. Collins, 920 F.2d 1247, 1254 (5th Cir. 1991).
As the court of appeals' opinion reflects, the State presented
substantial
evidence
showing
that
Burgess
participated
in
the
robbery and was acting as the get-away driver when he committed the
charged offense of
evading arrest
Burgess, 448 S.W.3d at 594-95.
with a
motor vehicle.
See
Addressing Burgess's challenge to
the admissibility of the extraneous offense evidence, the court of
appeals made the following additional findings that established
Burgess's
role
in
the
robbery
offense
and
his
motivation
to
subsequently evade police:
The challenged evidence was admitted via the testimony of
police officers James Crowson and Marcus Ryans, who
arrived at the service station after [Burgess] 's truck
had been stopped, and the testimony of Claudine James.
First, the officers collectively testified about the
following facts supporting that the occupants of the
truck commit ted a robbery: James' s report of the robbery
and identification of [Burgess] 's truck; the time and
location of the robbery relative to Officer Stallworth's
pursuit of the truck; and the discovery of the robbery
victim's purse and business cards on the side of the road
(Officer Stallworth having seen the truck's occupants
throw items out) and her $100 bill in one of the
passenger's shoes. Then, James provided the details of
the incident at the post office described above. Based on
all of this testimony, the trial court did not abuse its
discretion by determining the jury could find beyond a
reasonable doubt that [Burgess] committed robbery[.]
-10-
J
~
I
.
Id.
at
600.
Burgess
does
not
dispute
the
state
court's
which are amply. supported by the record in this case. 20
findings,
Absent clear and convincing evidence to the contrary,
court's findings are presumed correct.
See 28 U.S.C.
the presumption of
correctness
that
review "is equally applicable when a
to
a
state
trial
court,
applies
on
the state
2254(e) (1)
§
Moody v. Quarterman, 476 F.3d 260, 268 (5th Cir. 2007)
opposed
fact
(noting that
federal
habeas
state appellate court,
makes
the
finding
(quoting Sumner v. Mata, 102 S. Ct. 1303, 1304 (1982)
i
of
as
fact")
(per curiam))
(citations omitted) .
Because the State made a
sufficiently strong showing that
Burgess committed the extraneous robbery offense, which was plainly
connected to the charged offense of evading arrest, Burgess fails
to show that evidence of the robbery was admitted in violation of
due process or that the state habeas corpus court erred by denying
relief.
Burgess does not otherwise show that relief is warranted
under the federal habeas corpus standard of review.
he
§
B.
is
not
entitled
to
relief
on
this
claim
Accordingly,
under
28
U.S. C.
2254 (d) .
The Right to Confront and Cross-Examine Witnesses
Burgess argues that he was denied his constitutional right to
confront and cross-examine witnesses because he was not allowed to
question the robbery victims, Ka-Ron and Destiny Wade, during the
2
°Court Reporter's Record, vol.
pp. 8-88 (State's case-in-chief)
-11-
3,
Docket
Entry No.
13-9,
gui 1 t- innocence
phase
of
trial. 21
the
This
claim,
which
was
summarily rejected on state habeas review, has no merit.
The
Confrontation
Clause,
which
is
found
in
the
Sixth
Amendment to the United States Constitution, guarantees that "[i]n
all criminal prosecutions, the accused shall enjoy the right
U.S.
to be confronted with the witnesses against him."
amend. VI (emphasis added).
to
be
a
witness
'against'
CONST.
"Ordinarily, a witness is considered
a
defendant
for
purposes
of
the
Confrontation Clause only if his testimony is part of the body of
evidence that the jury may consider in assessing his guilt."
Cruz
v. New York, 107 S. Ct. 1714, 1717 (1987).
The record confirms that Burgess had the opportunity to crossexamine each of the State's witnesses against him during the guiltinnocence phase of the trial. 22
The respondent correctly notes that
the State did not call Ka-Ron and Destiny Wade as witnesses during
the
guilt-innocence
phase.
Rather,
these
witnesses
testified
during the punishment phase, where Burgess had the opportunity to
cross-examine them. 23
The Confrontation Clause does not require the prosecution to
call
all
21
adverse
witnesses
at
the
defendant's
trial.
See
Petition, Docket Entry No. 1, pp. 17-19.
22
Court Reporter's Record, vol. 3, Docket Entry No. 13-9,
pp. 31-51 (Officer Stallworth), 60-62 (Officer Crowson), 65-69
(Officer Childress), 72-75 (Officer Ryans), 81-84 (Claudine James),
86-87 (Claudine James, recross-examination) .
23
Id. at 115-27.
-12-
McAllister v. Brown, 555 F.2d 1277, 1278 (5th Cir. 1977); see also
United States v.
Morgan,
757 F.2d 1074,
1076
(lOth Cir.
1985)
(observing that the Confrontation Clause "is not a guarantee that
the prosecution will call all the witnesses it has against the
defendant"); United States v. Bryant, 461 F.2d 912, 916 (6th Cir.
1972)
upon
("The Sixth Amendment right of confrontation does not impose
the
Government
the
duty
to
call
a
particular witness.")
The Confrontation Clause is not implicated
(citation omitted) .
where the witness neither testifies nor provides evidence at trial.
See
United
States
v.
Porter,
764
F.2d
1,
9
(1st
Cir.
1985)
(citations omitted); see also Garcia v. Bravo, 199 F. App'x 692,
694
(lOth Cir. 2006)
{observing that the constitutional right to
confront witnesses "attaches only to those witnesses who actually
testify against the defendant").
Because the State did not call
Ka-Ron or Destiny Wade during the guilt/innocence phase of the
trial, Burgess's contention that he was deprived of the right to
confront or cross-examine them until the punishment proceeding has
no merit.
See Cooper v. California, 87 S. Ct. 788, 791 n.2 (1967)
(commenting
that
any
"contention
that
(petitioner)
was
unconstitutionally deprived of the right to confront a witness
against him,
testify
because the State did not produce the informant to
. we consider absolutely devoid of merit").
Burgess makes no effort to show that the state habeas corpus
court's
decision
to
reject
his
Confrontation Clause
claim was
contrary to or an unreasonable application of clearly established
-13-
Supreme Court precedent.
under 28 U.S.C.
C.
§
Accordingly, he is not entitled to relief
2254(d) on this claim.
Ineffective Assistance of Counsel at Trial
Burgess alleges that he was denied effective assistance of
(1) failed to
counsel at his trial because his defense attorney:
request a limiting instruction regarding the extraneous robbery
offense;
(2)
advised
him
not
to
testify;
and
investigate or interview state's witnesses. 24
(3)
failed
to
The state habeas
corpus court rejected these claims, concluding that the "totality
of the representation
afford
[him]
[that Burgess received]
reasonably
effective
assistance
was sufficient to
of
counsel
[at]
trial. " 25
Claims for ineffective assistance of counsel are governed by
the standard found in Strickland, 104 S. Ct. at 2064.
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.
Id.
"Unless a defendant makes
both showings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders the result
unreliable."
Id.
"To satisfy the deficient performance prong,
'the defendant
must show that counsel's representation fell below an objective
24
Petition, Docket Entry No. 1, pp. 7-12, 15-16.
25
FFCL, Docket Entry No. 13-16, p. 28.
-14-
I
standard of reasonableness.'"
(5th Cir.
denied,
2014)
135
s.
Hoffman v. Cain, 752 F.3d 430, 440
(quoting Strickland,
Ct.
1160
(2015).
104 S.
This is a
Ct.
at 2064),
cert.
"highly deferential"
inquiry; "[t]here is 'a strong presumption that counsel's conduct
falls
within
assistance."'
the
Id.
wide
range
of
professional
(quoting Strickland, 104 S. Ct. at 2065).
To satisfy the prejudice prong,
that there is a
reasonable
"[t] he defendant must show
reasonable probability that,
but for counsel's
unprofessional errors, the result of the proceeding would have been
different."
Strickland, 466 U.s. at 694.
"affirmatively prove prejudice."
A habeas petitioner must
Id. at 693.
A petitioner cannot
satisfy the second prong of Strickland with mere speculation and
conjecture.
1992) .
See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.
Conclusory allegations are
insufficient
to demonstrate
either deficient performance or actual prejudice.
See Day v.
Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009); see also Lincecum
v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992)
(stating that an
ineffectiveness claim based on speculation or conclusional rhetoric
will not warrant relief).
Because Burgess's ineffective-assistance claims were rejected
by the state court, the issue is not whether this court "'believes
the state court's determination' under the Strickland standard 'was
incorrect but
whether
substantially higher
S.
Ct.
1411,
1420
that
determination was
threshold.'"
(2009)
Knowles
(quotation
-15-
unreasonable -
v.
omitted).
Mirzayance,
In
a
129
addition,
"because the Strickland standard is a general standard, a state
court
has
even
more
latitude
to
reasonably
defendant has not satisfied that standard."
determine
Id.
that
a
When applied in
tandem with the highly deferential standard found in 28 U.S.C.
§
2254 (d),
review of
deferential"
on habeas
ineffective-assistance
corpus
review.
Id.
claims
at
is
1413;
"doubly
see also
Richter, 131 S. Ct. at 788 (emphasizing that the standards created
by Strickland and
"'doubly'
§
2254 (d)
are both "highly deferential," and
so" when applied in tandem)
( citations and quotations
omitted); Beatty v. Stephens, 759 F.3d 455, 463
cert. denied, 135 S. Ct. 2312 (2015)
1.
(5th Cir. 2014),
(same) .
Failure to Request Limiting Instruction
Burgess contends that his counsel was deficient because he
failed to request a limiting instruction regarding the extraneous
robbery offense before evidence of that offense was admitted at
trial. 26
In response to this allegation Burgess's defense attorney
explained his affidavit to the state habeas corpus court that he
did
not
request
a
verbal
instruction
from
the
trial
concerning the extraneous robbery offense for two reasons:
court
(1) he
did not want to highlight or bring the jury's attention to this
evidence as it was being admitted; and (2)
he observed that the
proposed jury charge included instructions limiting the use of
extraneous offenses unless proven by the State beyond a reasonable
26
Petition, Docket Entry No. 1, pp. 7, 8-9.
-16-
doubt. 27
Noting that trial counsel made sure that the jury charge
contained instructions on the limited use and the State's burden of
proof for extraneous offense evidence,
the state habeas corpus
court found that counsel made a "strategic decision" not to request
a verbal instruction on these issues at the time the evidence was
admitted "to avoid calling this evidence to the jury's attention,"
which was not unreasonable. 28
Strategic decisions made by counsel during the course of trial
are entitled to substantial deference in the hindsight of federal
habeas review.
"[j] udicial
See Strickland, 466 U.S. at 689 (emphasizing that
scrutiny
of
counsel's
performance
must
be
highly
deferential" and that "every effort [must] be made to eliminate the
distorting effects of hindsight").
A federal habeas corpus court
may not find ineffective assistance of counsel merely because it
disagrees with counsel's chosen trial strategy.
178
F.3d 309,
312
(5th Cir.
1999).
Thus,
Crane v. Johnson,
" [a]
conscious and
informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is
so ill chosen that
unfairness."
it permeates the entire trial with obvious
Green v.
Johnson,
116
F. 3d 1115,
1122
(5th Cir.
1997); Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)
Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975);
(citing
Daniels v.
Maggio, 669 F.2d 1075 (5th Cir. 1982)).
27
Slider Affidavit, Docket Entry No. 13-16, p. 18.
28
FFCL, Docket Entry No. 13-16, p. 26.
-17-
I
The record confirms that the trial court instructed the jury
verbally
and
in
writing
before
the
start
of
summation
and
deliberation on the limited use and the State's burden of proof on
extraneous offense evidence. 29
For reasons explained above, Burgess
has not shown that evidence of the extraneous robbery offense was
improperly admitted.
strategic
Burgess also fails to show that his counsel's
decision to
avoid calling
further
attention to
this
damaging evidence was deficient or that the state habeas corpus
court's decision was unreasonable under the doubly deferential
standard that applies on federal habeas review.
Therefore, Burgess
is not entitled to relief on this claim.
2.
Advising Burgess Not to Testify
Burgess contends that his counsel was deficient because he
advised Burgess not to testify. 30
Burgess acknowledges that he has
a lengthy criminal record of prior convictions, 31 which includes the
following:
aggravated robbery - serious bodily injury in 1991;
aggravated robbery -
serious bodily injury in 1982;
forgery in
1982; burglary, theft (two counts), credit card abuse, and burglary
of a motor vehicle in 1977; and another burglary in 1976. 32
Prior
29
Jury Instructions, Docket Entry No. 22-1, pp. 13-14; Court
Reporter's Record, vol. 3, Docket Entry No. 13-9, p. 92.
30
Petition, Docket Entry No. 1, pp.
Memorandum, Docket Entry No. 6, pp. 6-9.
7,
10-11;
Petitioner's
31
Petition, Docket Entry No. 1, p. 6; Petitioner's Memorandum,
Docket Entry No. 6, p. 10.
32
State's Notice of Intention to Use Evidence of Prior Convictions and Extraneous Offenses, Docket Entry No. 13-4, pp. 30-31.
-18-
unadjudicated
offenses
aggravated
include:
assault
in
1991;
assault causing bodily injury in 1990; robbery in 1981; aggravated
robbery with a deadly weapon in 1981; passing forged checks (two
counts)
and theft in 1977. 33
The State had given notice that it
would introduce these convictions and other extraneous offenses,
including the robbery of Dr.
phase
and
testify. 34
for
purposes
of
Ka-Ron Wade,
impeachment
during the punishment
if
Burgess
elected
to
Noting that some of the prior convictions were more than
ten years' old and that defense counsel could have filed a motion
in limine under Theus v. State,
1992)
845 S.W.2d 874
(Tex.
Crim. App.
(a "Theus motion") that would have allowed him "to testify at
the guilt stage of the trial
'free'
from impeachment," 35 Burgess
33Id.
35
A defendant who testifies "places his credibility at issue
and may thereafter be impeached like any other testifying witness."
Geuder v. State, 142 S.W.3d 372, 375 (Tex. App. - Houston [14th
Dist.] 2004, pet. ref'd) (citation omitted). Under Rule 609 of the
Texas Rules of Evidence, evidence that a witness has been convicted
of a felony or a crime of moral turpitude is admissible for
purposes of attacking his credibility if the trial court determines
"the probative value of the evidence outweighs its prejudicial
effect to a party." TEx. R. EviD. 609(a) (2). In Theus v. State, 845
S.W.2d 874, 880 (Tex. Crim. App. 1992), the Texas Court of Criminal
Appeals set forth five non-exclusive factors for evaluating whether
the probative value of evidence outweighs its prejudicial effect
for purposes of Rule 609, including:
(1) the impeachment value of
the prior offense; (2) the temporal proximity of the past crime
relative to the charged offense and the witness's subsequent
history; (3) the similarity between the past crime and the offense
being prosecuted; (4) the importance of the defendant's testimony;
and {5) the importance of the credibility issue. In a Theus motion
a defendant essentially asks the trial court to weigh these factors
and rule in advance that he is entitled to testify free from
(continued ... )
-19-
contends that his attorney's advice was deficient and deprived him
of his constitutional right to testify. 36
In his affidavit to the state habeas corpus court,
defense
counsel explained that he discussed a defendant's "absolute right"
to
testify with Burgess
impeached with prior
and
felony
the possibility that
convictions
if
he
he
would be
did. 37
Defense
counsel was not concerned about the State impeaching Burgess with
his older convictions,
but he was particularly concerned about
Burgess's aggravated robbery conviction from 1991, which resulted
in a 99-year prison sentence,
that offense when he was
result,
because Burgess was on parole for
charged with evading arrest. 38
As a
Burgess could be impeached with that prior conviction. 39
Defense counsel explained that he did not consider filing a Theus
motion because Burgess informed him "early" in the case that he did
not want to testify because he had no explanation for his actions
on the day of the offense. 40
35
( • • • continued)
impeachment by evidence of a prior conviction.
See Cisneros v.
State, 290 S.W.3d 457, 468 (Tex. App. -Houston [14th Dist.] 2009,
pet. dism'd) (describing the Theus procedure as a motion to testify
"free of impeachment"); Hensley v. State, 2015
WL 6081798, *2
(Tex. App. - Houston [1st Dist.] 2015, no pet.) (unpublished)
(same).
36
Petitioner's Memorandum, Docket Entry No. 6, p. 8.
37
Slider Affidavit, Docket Entry No. 13-16, at 19.
38
Id. at 19-20.
-20-
l
I
The
state
accurately
habeas
corpus
informed . by
his
court
defense
found
that
Burgess
counsel
that
he
could
was
be
impeached with his prior felony aggravated robbery conviction from
1991,
for which he received a 99-year sentence and was still on
supervised release, because Burgess had not been out of confinement
for more than ten years since he was released from custody for that
conviction. 41
court
also
See TEx. R. Evm. 609(b) . 42
found
that
Burgess
The state habeas corpus
expressly
informed
his
defense
counsel that "he did not want to testify because he did not have
any explanation
offense." 43
for
the
circumstances
surrounding
the
evading
Finding further that Burgess "clearly indicated that
his desire not to testify was due to reasons unrelated to any
concern over being impeached with his prior felony convictions,"
the state habeas corpus court implicitly concluded that defense
counsel's failure to file a Theus motion was reasonable and that
Burgess was not denied the right to testify as a result of his
counsel's deficient performance. 44
41
FFCL, Docket Entry No. 13-16, pp. 26-27.
42
Rule 609(b) of the Texas Rules of Evidence, which limits the
use of prior convictions for impeachment, "applies if more than 10
years have passed since the witness's conviction or release from
confinement for it, whichever is later."
TEx. R. Evm. 609(b).
Evidence of a prior conviction that exceeds the 10-year time limit
"is admissible only if its probative value, supported by specific
facts and circumstances, substantially outweighs its prejudicial
effect." Id.
43
FFCL, Docket Entry No. 13-16, p. 27.
44
Id. at 27, 28.
-21-
"A criminal defendant has a fundamental constitutional right
to testify on his own behalf."
(5th Cir. 1994)
(1987)).
Jordan v. Hargett, 34 F. 3d 310, 312
(citing Rock v. Arkansas, 107 S. Ct. 2704, 2708-10
"This right is granted to the defendant personally and
not to his counsel."
See id.
(citing Rock, 107
s.
Ct. at 2709).
The Fifth Circuit has recognized that a defendant may waive his
right
to testify,
advice of counsel.
and that defendants
See id.
Thus,
frequently do so on the
there is no violation of the
right to testify where the defendant merely acquiesced during trial
to his attorney's recommendation that he not testify, even if the
defendant
testified.
decides
See id.
later,
in
hindsight,
that
he
should
have
Instead, a violation of this right occurs only
"if the 'final decision that [the defendant] would not testify was
made against his will.'"
Id.
(quoting United States v. Teague, 908
F.2d 752, 759 (11th Cir. 1990)).
Burgess acknowledged at trial that his counsel had advised him
of his right to testify. 45
Burgess stated that he understood that
he had the right to testify, but elected not to on the advice of
counsel. 46
Because the state habeas corpus court found that Burgess
clearly indicated he did not wish to testify for reasons unrelated
to the potential for impeachment with his prior felony convictions,
Burgess must present clear and convincing evidence to overcome the
45
Court Reporter's
pp. 128-29.
46
Record,
vol.
Id. at 129.
-22-
3,
Docket
Entry No.
13-9,
presumption of correctness attributed to this finding.
U.S.C.
§
2254(e) (1).
See 28
Other than the allegations in his pleadings,
Burgess presents no evidence that he ever expressed a desire to
testify. 47
This is not sufficient to show that Burgess was denied
his constitutional right to testify.
F.2d 473,
"must
476
produce
{7th Cir.
1991)
something
See Underwood v. Clark, 939
(holding that a habeas petitioner
more
than
a
bare,
unsubstantiated,
thoroughly self-serving, and none too plausible statement that his
lawyer .
. forbade him to take the stand").
To the extent that Burgess chose
counsel's
advice,
he
cannot
not to testify based on his
show
that
he
See Jordan,
constitutional right to testify.
was
34
denied
his
F. 3d at 312.
Likewise, Burgess does not dispute that he committed the charged
offense of evading arrest with a motor vehicle while on parole from
his 1991 aggravated robbery conviction and that his testimony would
have been subject to impeachment for that offense as well as the
extraneous robbery that he participated in immediately before he
attempted to evade police.
Based on this record, Burgess has not
shown that his counsel's advice was constitutionally deficient.
Even assuming arguendo that counsel was somehow deficient for
interfering with Burgess's
demonstrate
actual
right
prejudice.
to
testify,
Burgess
does
Burgess
not
information about what testimony he would have given.
47
See Petition, Docket Entry No.
Memorandum, Docket Entry No. 6, p. 6.
-23-
1,
p.
10;
fails
provide
to
any
In light of
Petitioner's
the substantial evidence against him, Burgess fails to otherwise
show how his testimony would have made a difference in the outcome
of the proceedings.
See Sayre v. Anderson, 238 F.3d 631, 635 (5th
Cir. 2001) ("Considering the overwhelming evidence of [defendant's]
guilt, we cannot conceive of anything [defendant] could have said
that would have provided any reasonable possibility of a different
outcome."); see also United States v. Mullins, 315 F.3d 449, 456-57
(5th Cir. 2002)
(holding that, even where a counsel's performance
was found deficient for failing to honor his client's request to
testify, there was no valid ineffective-assistance claim absent a
showing of actual prejudice); United States v. Willis,
592, 598-99 (5th Cir. 2001)
273 F.3d
(same).
Burgess has not established that his counsel's performance was
deficient with regard to his
right
to testify or that he was
actually prejudiced as a result.
Absent a showing of deficient
performance or actual prejudice,
Burgess fails to demonstrate a
valid claim of ineffective assistance of counsel in connection with
his right to testify.
To the extent that the state court rejected
his
does
claim,
unreasonable
Burgess
under
the
not
show
that
doubly deferential
this
decision
standard of
was
review.
Accordingly, he is not entitled to federal habeas corpus relief on
this claim.
3.
Failure to Investigate State's Witnesses
Burgess contends that his counsel was deficient because he
failed to investigate or interview three witnesses who testified
-24-
for the State, including Officer Stallworth, Judge Claudine James,
and Dr. Ka-Ron Wade, which Burgess contends "could have allowed the
defense to establish a reasonable doubt. " 48
In response to this
allegation, defense counsel explained that he did not attempt to
interview Officer Stallworth because,
based on his experience,
Houston police officers are generally not willing to be interviewed
by defense attorneys. 49
Likewise, he did not attempt to interview
Claudine James or Ka-Ron Wade because he did not believe there was
any benefit,
noting that neither witness positively identified
Burgess as the driver of the vehicle. 50
The state habeas corpus
court made findings consistent with defense counsel's affidavit and
concluded that Burgess failed to show that he was denied effective
assistance
as
the
result
of
his
counsel's
alleged
failure
to
investigate. 51
A
habeas
investigate
corpus
on
the
petitioner
part
of
his
who
alleges
counsel
a
"must
failure
allege
to
with
specificity what the investigation would have revealed and how it
would have altered the outcome of the trial."
Bernard,
762
F.3d 467,
472
(5th Cir.
2014)
United States v.
(citation omitted)
(emphasis added); accord Miller v. Dretke, 420 F.3d 356, 361 (5th
Cir.
2005).
The record reflects
that defense counsel
48
capably
Petition, Docket Entry No. 1, p. 12; Petitioner's Memorandum,
Docket Entry No. 6, pp. 13-16.
49
Slider Affidavit, Docket Entry No. 13-16, p. 20.
50
Id. at 21.
51
FFCL, Docket Entry No. 13-16, pp. 27-28.
-25-
cross-examined Officer Stallworth,
trial. 52
Judge James,
and Dr. Wade at
Burgess does not suggest what other questions his counsel
could have asked, what additional investigation would have shown,
or how it would have
benefitted his
defense.
His
conclusory
allegations are insufficient to show that counsel's investigation
was
deficient
for
failing
Burgess was prejudiced.
to
interview
See Day,
the
witnesses
566 F.3d at 540-41;
or
that
see also
Lincecum, 958 F.2d at 1279 (denying habeas relief where petitioner
"offered nothing
pleadings"
to
more
support
than
claim
the
conclusory
that
counsel
failing to investigate and present evidence)
allegations
was
in
his
ineffective
for
Absent a showing of
both deficient performance and actual prejudice, Burgess does not
show that he was denied effective assistance of counsel because of
his attorney's alleged failure to investigate or that the state
court's
decision
was
unreasonable
under
the
circumstances.
Accordingly, he is not entitled to relief on this claim.
Because Burgess 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
52
Court Reporter's Record, vol. 3, Docket Entry No. 13-9,
pp. 31-51 (Officer Stallworth), 81-84 (Judge Claudine James), 86-87
(Judge Claudine James, recross-examination), 121-23 (Dr. Ka-Ron
Wade) .
-26-
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
right,"
28 U.S.C.
demonstrate
court's
"that
assessment
2253 (c) (2),
§
'reasonable
of
the
constitutional
which requires a petitioner to
jurists
would
constitutional
find
the
claims
district
debatable
wrong."'
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v.
McDaniel,
120 S.
Ct.
1595,
1604
(2000)).
or
(quoting
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."'"
1029, 1039 (2003).
Miller-El v.
Cockrell,
123 S.
Ct.
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 the district court was correct in its
procedural ruling."
Slack, 120
s. Ct. at 1604.
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
-27-
or
wrong.
Because
the
petitioner does not demonstrate 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. 14} is GRANTED.
(Docket
2.
Odell Burgess'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, on this 24th day of March, 2017.
LAKE
UNITED STATES DISTRICT JUDGE
-28-
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