Horn v. Stephens

Filing 15

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by John Horn. (It is recommended that Petitioners application for writ of habeas corpus be denied.). Signed by Judge Andrew W. Austin. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOHN HORN
V.
WILLIAM STEPHENS, Director,
Texas Dept. of Criminal JusticeCorrectional Institutions Division

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A-14-CA-1140-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

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 Application
for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1); Respondent’s Answer (Document
8); and Petitioner’s response thereto (Document 10). Petitioner 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
A.

Petitioner’s Criminal History
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant

to a judgment and sentence of the 33rd Judicial District Court of Burnet County, Texas. Petitioner
was charged with three counts of intoxication manslaughter, three counts of manslaughter, and two
counts of aggravated assault with a deadly weapon. A jury found Petitioner guilty of the three
intoxication manslaughter counts and the two counts of aggravated assault with a deadly weapon.

Petitioner was sentenced to twenty years in prison for each count, with the three intoxication
manslaughter counts to be served consecutively and the two aggravated assault charges to be served
concurrently.
On January 30, 2013, the Third Court of Appeals of Texas affirmed Petitioner’s conviction
and sentence. Horn v. State, No. 03-11-00407-CR, 2013 WL 491521 (Tex. App.—Austin Jan. 30,
2013). The Texas Court of Criminal Appeals refused Petitioner’s petition for discretionary review.
Horn v. State, No. PD-179-13 (Tex. Crim. App. June 12, 2013). Petitioner then challenged his
conviction through a state application for a writ of habeas corpus. The trial court did not enter
findings before forwarding the application to the Texas Court of Criminal Appeals. On November
5, 2014, the Texas Court of Criminal Appeals denied the application without written order. Ex parte
Horn, No. 81,882-01 at cover.
B.

Factual Background
The facts leading to Petitioner’s guilty verdict are straightforward. On the date in question,

Petitioner drove his truck across the center line of a road and into a car driven by Russell Rutland.
The collision killed Rutland and two of his children, and injured his two other children. At the time
of the collision, Petitioner was under the influence of methamphetamine, and Petitioner’s own
medical expert conceded that, based on the level of methamphetamine in Petitioner’s blood, he met
the legal definition of intoxication. Horn, 2013 WL 491521, at *1.
C.

Grounds for Relief
Petitioner asserts his trial counsel was ineffective by:
1.

Failing to call a witness at trial who would have testified about Petitioner’s
intoxication the night of the accident; and

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2.

Misinforming Petitioner that he was eligible for probation when he was not.

There is no dispute that Petitioner has exhausted his state court remedies regarding these claims.
DISCUSSION AND ANALYSIS
A.

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, – U.S. –, 131 S. Ct. 770, 783–85 (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
the claim–
(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.

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, 131 S. Ct. at 784.
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

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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 was insufficient, deference is still due to that decision,
because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.” Id.
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. Id. at 785 (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

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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.
B.

Ineffective Assistance of Counsel
Petitioner argues that he was denied effective assistance of counsel on two bases. Petitioner

raised these issues in his state application for habeas corpus relief. The state courts rejected the
merits of Petitioner’s claims. As such, the AEDPA limits the scope of this Court’s review to
determining whether the adjudication of Petitioner’s claims 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

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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.
Petitioner first asserts that his trial attorney was ineffective for failing to call witness Lacy
Stegall1 to testify at the trial. According to her affidavit, Stegall spoke with Petitioner sometime
between 6:00 am and 8:00 am the day of the accident. Petitioner told Stegall he was tired, and
Stegall instructed Petitioner to pull over his car. Eventually, Petitioner stopped responding. Stegall

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In his petition, Petitioner alternatively identifies this witness as “Lisa Steagall” and “Lacy
Steagall.” In an affidavit attached to the petition, the witness clarifies that her name is “Lacy
Stegall,” and the Court will refer to her accordingly.
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later learned there had been an accident. Stegall says she “do[es] not believe drugs were in
[Petitioner’s] system that night” and does not “think anyone was doing drugs that night.” Doc. 2 at
21. She also avers, however, that she “know[s] [Petitioner] wasn’t high because no one had any
drugs that night.” Id.
Petitioner asserts that his attorney’s failure to call Stegall as a witness amounts to deficient
performance. He says Stegall’s testimony, as described in her affidavit, would have supported his
defense theory that he was drowsy, and not intoxicated, at the time of the accident. Typically,
complaints of uncalled witnesses are not favored in federal habeas corpus review because the
presentation of witness testimony is essentially a matter of strategy and, thus, within the trial
counsel’s domain. Sayre v. Anderson, 238 F.3d 631, 635–36 (5th Cir. 2001); United States v.
Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983). Counsel’s decisions regarding trial tactics and
strategy cannot support a claim for ineffective assistance of counsel unless “it is so ill chosen that
it permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752–53 (5th
Cir. 2003) (citations omitted). Furthermore, in order for a petitioner to show the requisite Strickland
prejudice, the petitioner must show that the witness was available and willing to testify at trial and
the witness’s testimony would have been favorable. Alexander v. McCotter, 775 F.2d 595, 602 (5th
Cir. 1985); Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981).
Petitioner has not shown that counsel’s decision not to call Stegall constitutes deficient
performance. Stegall’s testimony that Petitioner did not have drugs in his system the night of the
accident was of questionable merit, considering Petitioner’s own expert had testified that Petitioner
met the legal definition of intoxication based on the amount of methamphetamine in his blood.
Horn, 2013 WL 491521, at *1. Stegall’s affidavit also is internally inconsistent: She first says she
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does not “think anyone was doing drugs that night,” yet later avers that she “know[s] [Petitioner]
wasn’t high.” Given the inconsistencies and weaknesses in Stegall’s affidavit, Petitioner has failed
to demonstrate that the state court’s finding that Stegall’s testimony would not have been favorable
was unreasonable, nor can he show he was prejudiced by counsel’s decision not to call Stegall. His
conclusory allegation of prejudice is insufficient to raise a constitutional issue redressable in this
proceeding. Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998).
2.

Misinformation About Probation

Petitioner next argues his attorney was ineffective because he was unaware until the penalty
phase of the trial that Petitioner was ineligible for probation. Petitioner’s strategy during plea
negotiations and trial, he says, was premised on an attempt to receive a sentence of probation from
the jury. Because probation was actually not an option, Petitioner asserts, no meaningful plea
negotiations occurred. Petitioner says he “would have urged his attorney to actively engage in plea
bargain negotiations for a shorter sentence,” had he known he was ineligible for probation.
Petitioner attached an affidavit from his trial attorney. In that affidavit trial counsel avers that
“the State was unwilling to propose, or consider, a plea offer on any of [the] cases pending against
[Petitioner].” Doc. 2 at 24. The district attorney who prosecuted Petitioner also submitted an
affidavit in which he swears the family of the victim in Petitioner’s case was intent on Petitioner
receiving the maximum sentence. Based on those wishes and the facts of the case, the district
attorney decided not to offer a plea bargain of any kind and “would have rejected any proposal [from
defense counsel] short of a maximum sentence.” Id. at 25. Had defense counsel requested a plea
involving “significant prison time,” however, the district attorney says he would have “discussed the
request with the victims’ family members.” Id.
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Though it is concerning that counsel was unaware of his client’s criminal history until late
in the trial proceedings, Petitioner has not shown that counsel’s lack of information prejudiced him.
Petitioner says that if he had known probation was not an option, he would have urged his attorney
to seek “a shorter sentence.” But the district attorney testified he would have rejected any such
request. And though the district attorney says he would have discussed an offer of “significant
prison time” with the victim’s family, the family was adamant that Petitioner receive the maximum
sentence possible. Thus, there is no reason to believe that if the district attorney had been presented
with an offer of “significant” prison time short of the maximum sentence, the State would have
accepted it. Instead, the evidence suggests the district attorney was disinclined to accept a plea offer
below the maximum sentence. Petitioner has therefore failed to carry his burden of demonstrating
prejudice. See Lafler v. Cooper, – U.S. –, 132 S. Ct. 1376, 1385 (2012) (holding that for petitioner
to show prejudice from ineffective assistance during plea negotiations, he must show, among other
things, the conviction or sentence under the purported plea offer would have been less severe than
the sentence actually imposed).
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.
RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be denied.

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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.
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OBJECTIONS
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
receipt requested.
SIGNED this 6th day of July, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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