Davis v. Director, TDCJCID
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Kenneth Wade Davis. (It is recommended that Petitioners application for writ of habeas corpus be denied.). Signed by Judge Andrew W. Austin. (os)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
KENNETH WADE DAVIS
WILLIAM STEPHENS, Director,
Texas Dept. of Criminal Justice–
Correctional Institutions Division
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas.
Before the Court are Petitioner’s Amended Application for Habeas Corpus Relief under 28
U.S.C. § 2254 and Amended Memorandum in Support (Document 12); Petitioner’s Supplement to
his Petition (Document 15); Respondent’s Answer (Document 13); Petitioner’s response thereto
(Document 18); and Petitioner’s Supplemental Reply (Document 20). Petitioner, proceeding pro se,
has paid the filing fee for his application. For the reasons set forth below, the undersigned finds that
Petitioner’s application for writ of habeas corpus should be denied.
STATEMENT OF THE CASE
Petitioner’s Criminal History
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant
to a judgment and sentence of the 368th District Court of Williamson County, Texas, in cause
number 10-686-K368. Petitioner pleaded guilty to aggravated assault causing serious bodily
injury/family violence, burglary of a habitation, and aggravated assault on a public servant. He also
acknowledged as true a deadly weapon allegation. A jury assessed punishment of 75, 20, and 60
years of imprisonment, respectively. Each sentence of imprisonment included a $10,000 fine. The
trial court ordered that the sentences be served concurrently. Petitioner appealed his convictions, and
the Third Court of Appeals of Texas affirmed each. Davis v. State, No. 03-11-00245-CR (Tex.
App.—Austin Aug. 14, 2012). The Texas Court of Criminal Appeals refused Petitioner’s petition
for discretionary review. Davis v. State, P.D.R. No. 1335-12 (Tex. Crim. App. Jan. 16, 2013).
Petitioner then filed an application for a state writ of habeas corpus. The trial court issued
written findings recommending relief be denied. On May 21, 2014, the Court of Criminal Appeals
denied Petitioner’s application on the trial court’s findings without a written order. Ex parte Davis,
WR-81,324-01, at cover.
According to the state court reviewing Petitioner’s application for state habeas corpus relief,
Petitioner broke into his ex-girlfriend’s home and waited there for her with a loaded gun. Doc. 7-5
at 133.1 State police officers were escorting Petitioner’s girlfriend home after she had reported an
assault by Petitioner earlier in the day. Id. When the ex-girlfriend and the officers arrived at her
home, Petitioner shot his ex-girlfriend in the back and also shot one of the officers as they fled. Id.
Petitioner was apprehended some time later.
Petitioner’s Grounds for Relief
Petitioner raises two grounds for relief:
The page numbers for document 7-5 refer to the electronic-document page numbers located
at the top of the page of that document.
Petitioner was denied the right to testify on his own behalf at his sentencing.
Petitioner’s attorney was ineffective for:
failing to conduct an adequate investigation into Petitioner’s mental state
after Petitioner had attempted suicide while incarcerated;
failing to gather, obtain, and/or present mitigating evidence at sentencing;
failing to present an insanity defense;
failing to seek a qualified mental-health expert;
misadvising Petitioner to withdraw his plea of not guilty and to plead guilty;
misadvising Petitioner not to invoke his right to testify;
failing to file a post-conviction or amended motion for a new trial to preserve
Petitioner’s ineffective-assistance claims for direct review; and
failing to file a pretrial motion alleging that Petitioner was incompetent to
failing to request a hearing on Petitioner’s motion for a new trial to develop
a record regarding Petitioner’s ineffective-assistance claims.
Exhaustion of State Court Remedies
Respondent asserts Petitioner failed to exhaust his first claim regarding his right to testify.
Respondent notes Petitioner did not raise this issue on direct appeal and, instead, first raised the
claim in his state application for habeas corpus relief. The trial court rejected this ground for state
habeas corpus relief because Petitioner could have, but did not, raise this issue on direct appeal.
Doc. 7-5 at 139. Thus, the state court concluded, Petitioner’s claim regarding his right to testify was
barred from consideration. Id. The Court of Criminal Appeals adopted those findings when it
rejected Petitioner’s application. Respondent concludes that, because the state court rejected
Petitioner’s claim based on a state procedural default, Petitioner’s claim likewise is barred from this
“A federal court may not grant a petition for a writ of habeas corpus where the state court
expressly denied the claim based on an independent and adequate state procedural rule.” Wright v.
Quarterman, 470 F.3d 581, 586 (5th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 730
(1991)). Claims that could have been raised on direct appeal, but were not, are procedurally
defaulted. Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005) (citing Ex parte Gardner, 959
S.W.2d 189, 199 (Tex. Crim. App. 1996)). In Texas, habeas corpus is a proper vehicle to review
only jurisdictional defects and “denials of fundamental or constitutional rights.” Ex parte Banks, 769
S.W.2d 539, 540 (Tex. Crim. App. 1989).
On direct appeal, Petitioner argued only that the trial court abused its discretion by failing
to appoint new counsel and denying Petitioner his right to self-representation. Petitioner could have
also raised his challenge regarding his right to testify, but he failed to do so. Petitioner does not
assert cause and prejudice for his failure to raise those claims during direct appeal, or that not
reviewing the claims would result in a miscarriage of justice. See Wright, 470 F.3d at 586 n.4.
Accordingly, the Court agrees with Respondent that Petitioner’s first ground for relief is procedurally
DISCUSSION AND ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court has summarized the basic principles that have grown out of the Court’s
many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington
v. Richter, 562 U.S. 86, 97–100 (2011). The Court noted that the starting point for any federal court
in reviewing a state conviction is 28 U.S.C. § 2254, which states in part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The Court noted that “[b]y its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington, 562 U.S. at 98.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following
all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due
a state court decision under § 2554(d) “does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had
previously concluded that “a state court need not cite nor even be aware of our cases under
§ 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no
explanation with a state-court decision, the habeas petitioner’s burden is to show there was “no
reasonable basis for the state court to deny relief.” Id. And even when a state court fails to state
which of the elements in a multi-part claim it found insufficient, deference is still due to that
decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three
circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision “involved an
unreasonable application of” such law; or (3) when the decision “was based on an unreasonable
determination of the facts” in light of the record before the state court. Harrington, 562 U.S. at 100
(citing 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000)). The “contrary to”
requirement “refers to the holdings, as opposed to the dicta, of . . . [the Supreme Court’s] decisions
as of the time of the relevant state-court decision.” Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.
2000) (quotation and citation omitted).
Under the “contrary to” clause, a federal habeas court may grant the writ 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.
Id. at 740–41 (quotation and citation omitted). Under the “unreasonable application” clause of
§ 2254(d)(1), a federal court may grant the writ “if the state court identifies the correct governing
legal principle from . . . [the Supreme Court’s] decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 741 (quotation and citation omitted). The provisions of
§ 2254(d)(2), which allow the granting of federal habeas relief when the state court made an
“unreasonable determination of the facts,” are limited by the terms of the next section of the statute,
§ 2254(e). That section states that a federal court must presume state court fact determinations to
be correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give deference to the state
court’s fact findings. Id.
Petitioner asserts he requested an evidentiary hearing in the state court but was denied a
hearing. Because, he says, the state court “ignored his requests for an evidentiary hearing to be
held,” this Court should hold an evidentiary hearing. Doc. 12, Amended Memorandum of Law in
Support of § 2254 Petition, at 6. Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
Petitioner has not pleaded allegations that would entitle him to a hearing under § 2254(e)(2). His
allegations amount to nothing more than a complaint regarding his state court habeas corpus
proceedings, and claims regarding those proceedings are not cognizable in a petition under § 2254.
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
Accordingly, Petitioner’s request for an evidentiary hearing should be denied.
Ineffective Assistance of Counsel
In his only properly exhausted ground for relief, Petitioner argues he was denied effective
assistance of counsel for a variety of reasons. Petitioner raised this issue, and all the bases for his
claim, in his state application for habeas corpus relief. The Court of Criminal Appeals rejected the
merits of Petitioner’s claim. As such, the AEDPA limits the scope of this Court’s review to
determining whether the adjudication of Petitioner’s claim by the state court either (1) resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding.
Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make
both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Id. at 687. In deciding whether counsel’s performance was deficient, the Court applies a standard
of objective reasonableness, keeping in mind that judicial scrutiny of counsel’s performance must
be highly deferential. Id. at 686–89. “A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Id. at 689. “Because of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. (citation omitted). Ultimately, the
focus of inquiry must be on the fundamental fairness of the proceedings whose result is being
challenged. Id. at 695–97. Accordingly, in order to prevail on a claim of ineffective assistance of
counsel, a convicted defendant must show that (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id. at 687.
Advising Petitioner to Enter Plea of Guilty
As Respondent notes, Petitioner was convicted after he pleaded guilty to these three charges.
Thus, Petitioner is limited to challenging the voluntariness of his plea, his understanding of the
charges against him, and his understanding of the consequences of pleading guilty. Hill v. Lockhart,
474 U.S. 52, 56–57 (1985). To establish ineffective assistance in this regard, Petitioner must show
that, but for his attorney’s errors, he would not have pleaded guilty and would have instead
proceeded to trial. See Uresti v. Lynaugh, 821 F.2d 1099, 1101 (5th Cir. 1987) (citing Hill, 474 U.S.
The record in this case defeats Petitioner’s claim. One day after the jury had been selected,
the court met with the parties without the jury present. Petitioner informed the court he had decided
to withdraw his plea of not guilty and to enter a plea of guilty. Doc. 6-5 at 6. The court asked
Petitioner if he had discussed his decision with his attorney. Id. Petitioner responded he had, and
he was satisfied with the answers given him by his attorneys. Id. at 6–7. He told the court he was
entering his plea “freely and voluntarily,” without any recommendation or coercion from the State,
and the decision was of Petitioner’s own free will. Id. at 8–9. Petitioner agreed with the court that
his decision was practical and that he was pleading guilty because he is guilty of the crimes. Id. at
9–10. Counsel then asked Petitioner about his decision and whether the decision had been
Petitioner’s to make; Petitioner agreed, saying “Yes, it is my decision. . . . I know what I’m doing.”
Id. at 12. Petitioner repeated his guilty plea with the jury present. Id. at 16–18. Petitioner has not
presented any evidence that contradicts this record or suggests his plea was involuntary. Nor has
Petitioner submitted any evidence suggesting, nor has he himself suggested, that without his
attorney’s advice he would have proceeded to trial.
Because Petitioner’s challenge to the voluntariness of his plea has no merit, the Court should
not consider Petitioner’s other allegations regarding his trial counsel. Petitioner waived those
challenges by entering a valid guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973);
Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir. 2000). Thus, the only other claims before the Court
relate to counsel’s efforts after Petitioner entered his plea.
Failure to Preserve Record or Request Evidentiary Hearing on Claims of Ineffective
Petitioner first alleges counsel failed to create a record regarding his claims of ineffective
assistance of trial counsel by amending the motion counsel filed for a new trial or by filing a
post-conviction motion for a new trial. Petitioner alternatively argues counsel should have requested
a hearing on the motion for a new trial to develop a record on appeal regarding his claims of
ineffective assistance of trial counsel.
In Texas, a convicted defendant may move in the trial court for a new trial in order to develop
the record for a claim to be raised on direct appeal, including for a claim of ineffective assistance of
trial counsel. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (en banc). Motions
for a new trial that raise issues “not determinable from the record,” including allegations of
ineffective assistance, may require an evidentiary hearing. Id. In those cases, however, the motion
must “be supported by affidavit . . . showing the truth of the grounds of attack.” Id. Perhaps because
the window for raising ineffective-assistance claims during direct appeal is so small, courts have held
that such claims are best left for collateral-appeal proceedings. See Trevino v. Thaler, 133 S. Ct.
1911, 1918–19 (2013) (citing numerous cases including Ex parte Torres, 943 S.W.2d 469, 475 (Tex.
Crim. App. 1997), and Robinson v. State, 16 S.W.3d 808, 810–11 (Tex. Crim. App. 2000)).
Petitioner’s motion for a new trial raised a single ground for relief, which alleged his trial
counsel failed to present evidence of Petitioner’s innocence. Doc. 5-20 at 132.2 Petitioner did not
attach an affidavit or any other documents in support of that claim. Without an affidavit, the trial
court had no obligation to afford Petitioner an evidentiary hearing. Reyes, 849 S.W.2d 816.
Moreover, the record of the trial proceedings was not available to appellate counsel until after the
time to amend the motion for a new trial had passed. Thus, there was no information appellate
counsel could have provided to the trial court to warrant an evidentiary hearing or to support the
motion for a new trial. Instead, this claim was best left for Petitioner’s collateral appeal, when the
record could be fully developed and the issues adequately briefed. See Mata v. State, 226 S.W.3d
425, 430 & n.14 (Tex. Crim. App. 2007).
The page numbers for document 5-20 refer to the electronic-document page numbers located
at the top of the page of that document.
Additionally, Petitioner did raise his ineffective-assistance claims in his state habeas corpus
proceedings. The state courts considered those claims and rejected them on the merits. Thus, even
if counsel could have or should have raised the ineffective-assistance claims earlier, Petitioner has
not shown how he was prejudiced by counsel’s performance. See Cantu v. Collins, 967 F.2d 1006,
1017 (5th Cir. 1992) (rejecting challenge to appellate counsel’s performance because issues counsel
did not raise were raised and found meritless in state collateral proceedings and federal habeas
Having independently reviewed the entire state court record, this Court finds nothing
unreasonable in the state court’s application of clearly established federal law or in the state court’s
determination of facts in light of the evidence. Accordingly, the Court is of the opinion that 28
U.S.C. § 2254, as amended by the AEDPA, bars habeas corpus relief on Petitioner’s claim that he
received ineffective assistance of trial counsel.
It is recommended that Petitioner’s application for writ of habeas corpus be denied.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s
constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 3rd day of August, 2015.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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