Oliver v. Davis
Filing
39
AMENDED MEMORANDUM OPINION AND ORDER. Signed by Chief Judge Orlando L. Garcia. (rg)
FILED
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SN ANTONIO DIVISION
NOV
0 8 2017
CLERK, U.S DISTRICT COURT
DARRICK DAVON OLIVER, TDCJ
tAS
By___________
WESTERN DISTRIQ
*
*
*
*
*
*
*
*
*
*
*
*
*
No. 1921743,
Petitioner,
V.
LORIE DAVIS, Director, Texas
Dep't Of Criminal Justice,
Correctional
Institutions
Division,
Respondent.
DEPU
CLERK
CIVIL NO. SA-16-CA-00553-OLG
NDED MEMORPNDUM OPINION
ND ORDER
Darrick Davon Oliver, an inmate in the custody of the Texas
Department
Division
habeas
Criminal
of
("TDCJ-CID"),
has
pursuant
corpus,
Justice-Correctional
filed
to
an
application
U.S.C.
28
Institutions
§
for
writ
a
challenging
2254,
of
his
convictions on two counts of retaliation as a habitual offender.
Entry
(Docket
"DE"
1)
Petitioner
.
subsequently
was granted leave to file an amended petition.
Petitioner has
for
Time
Rules
also requested
Limitation"
Governing
(DE
34)
Section
a
.
2254
preliminary review of the
Movant's Responses
36),
the record
(DE 23),
(DE
(DE
33
(DE
Cases,
the
and
and 16)
9
and a "Motion
32)
required by
As
amended petition.
the amended habeas application
22),
hearing
requested
Rule
Court
4
of
conducted
the
a
Having considered
16),
Respondent's Answer
(DE
and 35),
Movant's Supplement
(DE
(DE
and applicable law, the Court finds the
petition should be DENIED.
(DE
16).
Petitioner's requests for
an
evidentiary
DENIED.
hearing
and
"time
for
are
Petitioner
threatening
Procedural Background
to
charged with
was
harm two police
two
2014,
true to
(DE
after petitioner pled not
the
two enhancements,
counts
23,
pg.
guilty to
jury
a
retaliation
of
411)
On March
.
offense and
the
found him guilty of each
count and further, found the enhancements to be true.
.
each
920)
.
with
the
Petitioner
sentences to
timely
run
concurrently.
notice
filed a
unpublished opinion issued on February
pg.
4,
2015,
Oliver
00261-CR,
2015)
2015 WL
Court
of
505072
Criminal
discretionary review.
Oliver then filed
App.
(Tex.
Appeals
Oliver
a
refused
State,
v.
(Id.,
appeal
of
of Appeals affirmed his conviction.
the
(Id.,
Punishment was assessed at thirty years imprisonment
case
v.
(DE
23,
an
the Fourth Court
State,
Oliver's
04-14-
No.
On April
.
in
pg.
in
and,
2015,
22,
petition
for
PDR No. 220-15.
state writ application on June
challenging his convictions.
by
enhanced to habitual
officers,
status by two prior convictions.
570)
also
(DE 32 and 34).
I.
28,
limitations"
pgs.
868-84)
2015,
2,
The Court
.
of Criminal Appeals denied his application without written order
on January 20,
2016.
(Id.,
writ petition and amended
and
January
1,
2017,
845).
pg.
Oliver filed his federal
federal writ petition on June
respectively.
(DE
1
amended petition, Oliver alleges the following:
2
and
16)
.
8,
In
2016
his
1.
received ineffective assistance of trial and appellate
counsel when
He
a.
his motion for speedy trial was not ruled upon in spite
of the delay between his arrest and trial;
b.
his attorney failed to subpoena witnesses;
c.
his
d.
his attorney failed to object to hearsay testimony;
e.
his attorney failed to file a motion to suppress
police officer's illegal search and seizure; and
f.
his
attorney
transcripts.
right to
complainant's
trial;
confront witnesses was violated when the
out-of-court statements were admitted at
failed
to
provide
a
copy
of
the
trial
received ineffective assistance when his appellate
counsel failed to raise grounds that the state habeas
court found could have been raised on appeal.
2.
He
3.
African Americans were excluded from the jury.
(DE 16, pgs.
6-13)
II.
Factual Background
The factual background was briefly summarized by the Fourth
Court of Appeals
2015,
in
its
Memorandum Opinion,
dated February
4,
as follows:
According to one of the witnesses, who was Oliver's
common law wife, Oliver assaulted her, her sister, and her
friend after returning home late one evening. The argument
started when Oliver removed his and his wife's baby from
its crib against his wife's wishes. Oliver slammed his
wife's hand in the bedroom doorway, punched his wife's
sister in the jaw, and ultimately, threw all three women
out of the house. The wife called police. By the time San
Antonio police officers Matthew Martin and Vincent Giardino
arrived, Oliver had locked all three women out of the
house. Ultimately, the officers arrested Oliver based on
3
outstanding warrants. However, before the officers could
remove him from the home, Oliver verbally threatened his
wife, her sister, and her friend, reminding them of his
gang affiliation. Oliver made similar threats against the
officers, prompting the retaliation charges.'
2015 WL 505072, *1.2
Oliver,
III. Standards of Review
Review of State Court Adjudications
1.
Oliver's
federal
petition
is
standard of review provided by
Penalty
Death
2254 (d),
a
Act
("AEDPA")
petitioner
may
governed
by
the
the Antiterrorism and
28
.
U.S.C.A.
obtain
not
heightened
Effective
Under
2254.
§
federal
habeas
§
corpus
relief on any claim that was adjudicated on the merits in state
court proceedings,
(1)
unless the adjudication of that claim either:
'resulted in a decision that was contrary to,
unreasonable application of,
determined by the Supreme
resulted
in
a
decision
or involved an
clearly established Federal law, as
Court
of
the
was
that
United States",
based
on
an
or
(2)
unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.
(2005)
of
.
v.
Payton,
544 U.S.
133,
141
This intentionally difficult standard stops just short
imposing
claims
Brown
a
complete
bar
already
rejected
in
on
federal
state
court
relitigation
proceedings.
Harrington
of
v.
1Section 36.06 makes it an offense to threaten to harm another by an unlawful
act in retaliation for, or on account of, another's service or status as a
public servant. TEX. PENAL CODE ANN. § 36.06(a) (1) (A) (West 2011)
2Petitioner disputes these facts in his response filed on September 18, 2017,
arguing that no consent to enter was given and further, that the out of court
statements violated petitioner's right to confront the witnesses.
(DE 35).
V4I
Richter,
U.S.
562
664
651,
A
U.S.
102
86,
(citing Felker
(2011)
habeas
court's
inquiry
into
unreasonableness
should always be objective rather than subjective,
on whether the
was
state
law was
incorrect
132-33
(2010)
Even a
court's
unreasonable"
erroneous.
Wiggins
;
McDaniel
Smith,
v.
case for relief
itself.
show
Richter,
that
the
unreasonable,
Landrigan,
U.S.
disagree"
state
on
U.S.
(2003)
to
v.
.
So
correctness
relief.
Alvarado,
higher
obtain
federal
long
U.S.
habeas
court's
conclusion
Schriro
Andrade,
jurists
court's
state
562
652,
U.S.
664
relief
on
at
(2004)).
a
v.
538
could
decision,
claim lacks merit
a
(2003)
objectively
v.
"fairminded
as
the
120,
petitioner must
was
Lockyer
adjudicated on the merits in state court,
the state
state
threshold."
(2007);
of
a
decision
Richter,
541
U.S.
520-21
the
Instead,
court's
473
510,
558
reached a different
determination that
habeas
Yarborough
465,
Brown,
it
regardless of whether the
102.
at
"substantially
the
court's
federal
words,
550
U.S.
state
a
75-76
63,
562
whether
not
v.
not mean
does
court would have
and
U.S.
539
contrary conclusion was unreasonable,
habeas
with a focus
application of clearly established
"objectively
or
strong
federal
518
(1996)).
federal
federal
Turpin,
v.
a
precludes
(citing
101
In
other
claim previously
Oliver must show that
court's ruling "was so lacking in justification that
there was an error well understood and comprehended in existing
5
law beyond any possibility for fairminded disagreement."
103; see also Bobby v.
Furthermore,
application
presented"
federal
Stated
all
writ
for
of
courts.
presented with the
exhausted.
Id.
F.3d 255,
459
U.S.
court
4,
courts
before
being presented
the
Connor,
state
same facts
at 275-77.
404
U.S.
and legal
an
relied
upon
exhaustion
in
958 n.5
Additionally,
§
2254(e) (2),
factual
a
legal
a
state
requirement."
708 F.2d 954,
on
for
at
Id.
(5th Cir.
habeas
development
(2011).
finding.
been
.
to
(citing Vela
to
be
that a
.
Cockrell,
v.
Harless,
v.
in
federal
from that
satisfy
v.
the
Estelle,
1983)).
except for the narrow exceptions contained in
in
petitioner
federal
evidence presented to the state
court
.
Wilder
"fails
259
(1971)
claim
a
theory distinct
court,"
the
to
have
A petitioner "advance[ing]
based
the
must
(citing Anderson
2001)
"fairly
275
270,
Thus "it is not enough
(5th Cir.
(1982)).
argument
been
theory upon which the
order
in
have
system
court
assertions
his
260
6
federal
a
must
somewhat similar state-law claim was made."
274
in
corpus
differently,
bases
raised
habeas
v.
at
(2011)
of
Picard
petitioner
grounds
the
24
state
the
to
Dixon, 565 U.S. 23,
Id.
Cullen
Reasoning that
v.
precluded
is
court
court
further
must
rely
on
and
when challenging
Pinholster,
"[ut would
from
be
563
U.S.
strange to
170,
a
the
state
181-82
ask federal
courts to analyze whether a state court's adjudication resulted
in a decision that unreasonably applied federal law to facts not
before the state court," Pinhoister explicitly held that "[i]f a
claim has been
adjudicated
on
federal
petitioner
must
2254(d)
at
habeas
the merits
overcome
state
court,
limitation
the
of
on the record that was before that state court."
(1)
182-85.
Thus,
bearing
on
§
limited
to
the
"evidence introduced in federal
2254(d)
review"
(1)
record
that
and
was
this
before
adjudicated the claim on the merits."
§
Id.
court has no
Court's
the
a
state
review
court
"is
that
Id.
Review of Sixth amendment Claims
2.
Court
The
reviews
alleged ineffective
under
Sixth
cannot
466 U.S.
establish
counsel
unless
deficient and
687-88,
Kentucky,
In
(2)
690.
Strickland's
668
of trial
claims
concerning
counsel
the
("IATC" claims)
test established in
(1984)
violation
a
he
Amendment
assistance
the familiar two-prong
Washington,
at
by a
Strickland
v.
Under Strickland, a petitioner
.
demonstrates
Sixth
his
of
(1)
Amendment
counsel's
performance
this deficiency prejudiced his
According to the Supreme Court,
high
bar
is
never
559 U.S.
356,
371
right
defense.
to
was
Id.
"[s]urmounting
(2010).
determining
whether
an
easy
counsel
task."
performed
Padilla
v.
deficiently,
courts "must be highly deferential" to counsel's conduct,
and a
petitioner must show that counsel's performance fell beyond the
bounds
of
prevailing
objective
7
professional
standards.
Strickland,
to
have
466 U.S.
rendered
Counsel
687-89.
at
adequate
"strongly presumed
is
assistance and made
all
significant
decisions in the exercise of reasonable professional
Burt
Titlow,
V.
466 U.S.
tactics
at
and
134
690)
Ct.
S.
strategy
cannot
the
be
of
that
entire
Cotton
permeates
the
Cockrell,
v.
counsel
competent
tactician,
counsel
miscalculation or
may
lack of
unless
for
752-53
is
For this reason,
the
689;
be
Amendment
judged
not
be
faulted
foresight or
Accordingly,
the
there
"falls
is
(5th Cir.
540
2012)
of
a
within
professional assistance."
2003).
As
or
a
reasonable
failing
to prepare
Richter,
562
U.S.
every effort must be made to eliminate
Gentry,
benefit
unfairness."
strategist
for
for
Strickland, 466 U.S.
U.S.
1,
hindsight.")
strong
the
Feldman
(2003)
6
guarantees reasonable competence,
with
deficiency
v.
chosen
ill
Cir.
(5th
flawless
a
"distorting effects of hindsight."
Yarborough
so
obvious
for what appear to be remote possibilities."
at 110.
constitutionally
it
with
trial
on
"[j]ust as there is no expectation
will
attorney
an
basis
trial
F.3d 746,
343
the Supreme Court explained,
that
(quoting Strickland,
(2013)
"A conscious and informed decision
.
ineffective assistance
it
17
10,
judgment."
v.
(citations
range
Thaler,
that
of
I,'
omitted)
an
alleged
reasonable
695 F.3d 372,
(quoting Strickland, 466 U.S. at 689)
[ól
Sixth
not perfect advocacy
presumption
wide
("The
at
378
demonstrate
To
there
is
petitioner
a
reasonable
a
probability
errors,
result
unprofessional
been
prejudice,
A
different.
the
reasonable
but
that,
of
"must
show
the proceeding would have
probability
is
probability
a
Analysis
Ineffective Assistance of Counsel
Petitioner was
February 28,
pg.
Strickland,
at 694.
IV.
1.
counsel's
for
sufficient to undermine confidence in the outcome."
466 U.s.
that
986)
2012,
2011,
and tried on February 18,
2014.
was
He
.
arrested on December 26,
represented
by
five
attorneys and one appellate attorney,
denied
effective
initially
however,
assistance
appointed
to
as
counsel,
2,
stating
Oliver
2012,
that
(DE
attorneys,
23-24,
four
trial
and maintains that he was
counsel.
represent
on or about October
withdraw
of
indicted on
William A.
December
on
Brooks
the
Brooks
26,
was
2011;
filed a motion to
defendant
Oliver
had
"expressed his dissatisfaction with Counsel's representation and
in the manner he expects Counsel to conduct his representation."
(DE
23-10,
pg.
423)
.
On October
4,
2012,
Michael Cohen to represent the defendant.3
the Court
(Id.,
pg.
appointed
427).
Due
3Petitioner alleged in his state writ application and his petition for
discretionary review that Cohen was ineffective because he prosecuted Oliver
as a District Attorney in another case and, therefore, had a conflict of
interest.
However, petitioner does not raise any complaints against Cohen in
his federal writ.
Moreover, Cohen withdrew immediately upon learning of the
conflict and it is unclear how petitioner was prejudiced by this one month
representation.
to
Tony
later,
428)
pg.
On
withdraw
for almost
Court
the
Wallace
counsel,
as
appointed
about
or
allowed
was
Jimenez was
.
petitioner
that
Cohen
conflict,
a
one year,
stating
appoint
2013,
after
Jimenez
filed
25,
Mr.
that
alternate
and
one
defendant
the
counsel.
continued
to
held
February
on
represent
Oliver throughout
Vincent
2014.
18,
the
(Id.,
representing
a
motion to
had
requested
(Id.,
trial,
Dennis
525).
pg.
Tarver was then appointed on November 28,
P.
month
represent Oliver.
to
October
withdraw
to
2013,
and
which was
Callahan
was
appointed as petitioner's counsel on appeal.
Speedy Trial Claim
a.
Petitioner contends that his trial attorneys were deficient
in failing
to obtain a
and as a result,
ruling on his motion for a speedy trial
he was denied due process.4
that the time between his arrest,
well
past
present
a
thirty
the
defense
day time
was
Oliver maintains
the charge and indictment was
limit
prejudiced
by
and
that
this
ability to
his
delay
due
to
the
"disappearance of the only eyewitness's in this case."
In
determining
whether
the
federal
or
state
right
to
a
speedy trial has been denied, the court employs a balancing test
in
which
weighed.
the
conduct
Shaw
v.
of
State,
both the
117
State
S.W.3d 883,
and the
888
defendant
(Tex.
Crim.
are
App.
the extent petitioner newly asserts his appellate counsel was deficient in
not raising this issue on appeal, petitioner has failed to exhaust his State
Court remedies.
Ficard, 404 U.S. at 275.
'1To
10
2003);
Kelly
Barker
see
State,
v.
Wingo,
v.
163 S.W.3d
407
U.s.
726
724,
514,
530
Crim.
(Tex.
accord
(1972);
App.
2005).
In
determining whether a particular defendant has been deprived of
his
right
to
speedy
following factors:
the
defendant's
defendant."
889.
of delay,
assertion
Barker,
this
In
trial,
"Length
a
407
of
courts
his
U.S.
the
at
and prejudice
see
530;
considered
the
reason for the delay,
right,
the respondent
case,
have
Shaw,
the
S.W.3d at
117
concedes that
to
the two
year
delay in this case is sufficient to trigger the Barker analysis.
Petitioner's
first
trial
counsel,
he did not
file and argue a motion for
the
the
time,
petitioner's
75)
Court
case was
was
following
Brooks,
Mr.
stated
that
speedy trial because at
Felony
a
labeled "standard."
Case
Plan
23-24,
(DE
pgs.
and
974-
Brooks states that from the time that Oliver was arrested
.
until
the time
withdrew as
he
any action to delay the case;
counsel,
instead,
the
State did
any delay was caused by
the Court's scheduling and the Felony Case Plan.
Mr.
Jimenez,
not take
(Id.).
petitioner's third trial counsel,
states that
he filed a Speedy Trial Motion and did not obtain a ruling prior
to
withdrawing
However,
February
(Id.)
.
and
of
Mr.
petitioner's
Jimenez
Mr.
petitioner
as
Mr.
2014,
Jimenez
points
Tarver,
after
counsel.
out
the
opines
that
11
was
withdrew,
in
all
23,
965).
pg.
according
that,
motion
Jimenez
(DE
ruled
on
and
was
likelihood,
to
in
both
mid-
denied.
the
same
result would have occurred had the Court
year earlier.5
Further,
(Id.).
ruled on the motion
Tarver,
Mr.
a
petitioner's fourth
trial attorney, states that he believes the trial delay had more
to
with problems
do
between petitioner
anything the State did.
fault
trial
Petitioner
he
appears
to
a
appoint
time
familiarize
been
counsel.
of
attorneys
This
have
withdraw
required
and
current
the
and the court to rule on the motion
new attorney,
a
his
counsel.
motion,
and then
of
to
change
a
Another
factor.
appears
for
busy
the court's
large
a
delay
three
new
instead,
been
requests
that
appointed
attorney to file
to
the
repeated
requested
be
have
to
contributing
petitioner's
that
969)
delay that resulted;
in any
docket
factor
pg.
attorneys than
trial counsel appear to agree that the State was not
Here,
at
(DE 23,
and his
himself
with
who
then required
petitioner's
additional
case.
Thus,
although the record indicates that petitioner asserted his right
to
a
speedy trial,
delayed
the
ability
due
to
the
case," Mr.
also
proceedings
separate occasions.
his
it
to
reflects that petitioner repeatedly
by
requesting
Moreover,
present a
of
counsel
on
three
although petitioner contends that
defense was
"disappearance
new
the
prejudiced by this delay
only
eyewitness's
in
this
Tarver stated that he contacted one of the witnesses
Although petitioner argues he was denied effective assistance because the
motion for speedy trial was not ruled on, Mr. Tarver states that he requested
a ruling and the motion was denied. (DE 23, pg. 969)
12
who told him that neither she nor her sister were interested in
coming
to
mess."
court
(Id.,
the motion,
and
pg.
the
Additionally,
all
work
counsel's
Strickland,
reviewing
court
allegations
the
on
representation
likewise
found
(DE
pg.
23,
findings
and
trial
2)
convincing
Lonberger,
performance
683,
696
(5th
Cir.
TCCA's
decision
clearly
established
422,
2001)
was
an
implicit
the
account
that
of
trial
objective
an
991)
pg.
counsel's
claim,
was
and
determinations
TCCA
the
not
deficient.
explicit
factual
entitled
are
to
a
which may be overcome only by clear
evidence.
459 U.S.
below
petitioner's
credibility
a
sufficiently
concluded
fall
(DE 23-24,
TCCA's
in
on
complaints,
detailed
a
Court
not
did
ruling
a
counsel
denying
The
.
petitioner's
The
presumption of correctness,
and
denial of
466 U.s. at 694.
provided
and
case.
subsequently
obtain
to
found that trial
standard of reasonableness.
In
court's
his
and.
the record reflects that
counsel's failure
in
habeas trial
their
fact that
Oliver
of
Based on the trial
motion for speedy trial.
rebutted
tired
petitioner has not demonstrated that he was,
prejudiced by
state
were
had not disappeared but rather were disinterested
in testifying,
fact,
they
968).
well as
as
the witnesses
that
U.S.C.
433
§
(1983);
28
Neal
Petitioner has
.
unreasonable
federal
law
13
or
the
Marshall
2254(e) (1);
v.
Puckett,
not
shown
application
facts
in
239
v.
F.3d
that the
of
light
either
of
the
evidence
presented.
Accordingly,
petitioner's
ineffective
assistance of counsel claim based on trial counsel's
failure to
obtain a ruling on his motion for a speedy trial is denied and
dismissed with prejudice.
Failure to Subpoena Witnesses
b.
Petitioner
deficient
were
next
that
his
trial
failing to subpoena witnesses
in
necessary
his
to
maintains that A.
women who
alleges
were
defense.6
Stairs,
present
been subpoenaed.
In
when
Oliver
was
Z.
petitioner
Bernard,
arrested,
the three
should have
The record reflects an affidavit by Stairs who
states she was not threatened and did not fear Oliver;
Stairs
does not
959)
23,
pg.
she
states
she
witnessed a
which
was
verbal
"recall
taken
(Id.).
However,
submitted in
PDR and,
Oliver
Mr.
this
support
therefore,
altercation
and S.A.P.D.
on
March
after the incident in question,
not
(DE
Bernard also submitted an affidavit wherein
her sister, Anayka Stairs,
affidavit,
however,
deny that Oliver threatened the officers.
Ms.
.
was
petitioner maintains
particular,
Hargraves and
S.
counsel
(Id.,
5,
between
pg.
2012,
33).
over
Oliver,
In this
two months
Bernard represents that she did
threatening
affidavit
does
of petitioner's
any
or
not
appear
state
writ
has no bearing on a §
bTo the
one
[herself] ."
to
have
been
application or
2254(d)
(1)
review as
extent petitioner newly asserts his appellate counsel was deficient in
not raising this issue on appeal, petitioner has failed to exhaust his State
Court remedies.
Picard, 404 U.S. at 275.
14
this
the
Court's
state
review
court
limited
"is
that
to
adjudicated
the
the
record that was
claim
before
on
the
merits."
counsel,
Mr.
Brooks,
Pinholster, 563 U.s. at 181-82.
petitioner's
Notably,
addressed
this
allegation
first
in
trial
responding
to
petitioner's
state
writ:
Oliver alleges key witnesses, whose testimony would
have greatly aided the defense disappeared during the two
year period between his indictment and trial. In the facts
supporting ground one (1) of Oliver's application he claims
the loss of witness testimony, 'that I did not commit these
retaliation crimes and did not threaten anyone.' I am not
able to determine the name of the person or persons that
could provide that testimony from the facts supporting
ground one (1)
However, Oliver does name Zuleyka Bernard,
An[a]yka Stairs and Sylvia Hargr[a]ves as the individuals
present during his arrest in his application for relief. On
March 28,
2011
[sic],
I
interviewed Oliver's
fiancé,
An[a]yka Stairs, and her sister Zuleyka Bernard (Bernard)
Sylvia Hargr[a]ves was unavailable and unwilling to speak
with me.
During that interview Stairs and Bernard were
unable to say whether Oliver committed the offense of
retaliation of whether Oliver threatened anyone. I obtained
an affidavit and contact information and I was in contact
with both Stairs and Bernard until I withdrew from Oliver's
.
case.
(DE 23,
pgs.
986-87)
Petitioner's
fourth
attorney,
Mr.
Tarver,
also
addressed
this complaint in his response to petitioner's state writ:
Regarding subpoenaing of witnesses
to
court,
Mr.
Oliver and I addressed this a lot. I got a phone nuthber to
call from the Investigator's report as well as from Mr.
Oliver. Neither number produced results. I spoke with a
lady when I called one of the numbers on my cell phone at
court. I identified myself and explained what I wanted. She
did not identify herself, but informed me that neither she
nor her sister were interested in coming to court. She
15
indicated to me that they were tired of Mr. Oliver and his
I
related this to Mr. Oliver who responded cursing,
those bitches." I tried at different times calling
back and the phone would either ring, or in one instance,
someone picked up, I identified myself and they hung up. I
spoke with two of Mr. Oliver's family members who came to
court, a cousin and an older daughter, neither was helpful
in contact information on the witnesses. The cousin told me
that no one was coming to testify for Mr. Oliver because
they were all fed up with him. She indicated that they knew
what was going on, they just didn't want to get involved. I
informed Mr. Oliver of all of this and he told me to leave
the ladies to him, that he could get them down to court. He
indicated that he still had a close relationship with them
(the wife and sister) and he could get them to testify.
mess.
"fuck
I also explained to Mr. Oliver that even if the ladies
testified,
it was not a done deal that their testimony
would
be
favorable
or
if
favorable
not
necessarily
persuasive with the jury. I advised him that his wife had
signed a San Antonio Police Department form 2089 stating
that he slammed her finger in the door, and drug her down
the hall by her hair. I also told him that she said that he
was upset and violent that night. I told him a jury did not
have to believe anything the ladies said. I told him the
State would paint their testimony if it was supportive as
being fearful of challenging him face to face in court.
my opinion, even if the witnesses had shown up
including the Investigator I don't believe the jury would
have been persuaded by them due to the over whelming bad
In
facts on the States' side of the case. I just don't see
that a jury would find them credible if they testified that
Mr.
Oliver was neither threatening nor violent towards
anyone that night. Any witness would have been hard pressed
to explain what happened when he came home and how they
ended up being locked out the house at 3 o'clock in the
morning with the baby still inside. I explained that their
testimony at the very least would be problematic.
I
explained that the wife would be forced to describe the
'fight' they had that led to her finger getting slammed in
the door; and to explain how she lost tufts of her hair in
the hallway; and relate how she got locked out of a room
away from her three week old baby.
I
explained to Mr.
Oliver that I saw nothing positive in going to trial, there
were too many negative facts to overcome.
16
The Investigator was never discussed as far as him
coming to court. The witness count was always two, the wife
and her sister.
Finally,
regarding the lady witnesses,
neither of them have called me in the year and a half since
trial requesting information or asking how they can help. I
find
that
extremely telling,
nor
have
they
provided
affidavits for Mr. Oliver in his application to this court
seeking post-conviction relief.
pgs.
(DE 23,
987-88)
trial
Here,
counsel's
decision
not
to
subpoena
three
witnesses who gave statements to the officers at the time of the
incident that they had been threatened by the petitioner only to
recant
later
their
Cotton,
unreasonable.
strategy
cannot
assistance
[they]
Mr.
of
statements
343
be
the
counsel
basis
for
"unless
752-53
at
appear
not
(trial
to
be
tactics
and
constitutionally
[they
are]
ill
so
ineffective
chosen
permeate the entire trial with obvious unfairness")
Tarver stated in his response,
have believed the
recanted
their
testimony of
statements,
depicting injuries that were
the
F.3d
does
original
version
of
that
.
As
it is doubtful the jury would
family members
particularly
in
who subsequently
view
of
evidence
sustained and were consistent with
events
reported
to
the
officers.
Accordingly, Oliver has not overcome the strong presumption that
counsel's failure to subpoena the three witnesses "falls within
the wide range of reasonable professional assistance."
695 F.3d at 378
(quoting Strickland, 466 U.s. at 689)
17
Feldman,
Additionally,
the state habeas trial court also found that
trial counsel sufficiently rebutted all allegations and provided
a
detailed
account
their
of
work
the
on
case.
The
Court
concluded that trial counsel's representation did not fall below
an
objective
Moreover,
standard of
found
(DE
pg.
findings
23-24,
(DE
subsequently denying petitioner's
in
likewise
23,
reasonableness.
trial
2)
and
counsel's
TCCA's
The
.
performance
credibility
implicit
determinations
not
991)
deficient.
explicit
factual
entitled
are
TCCA
the
claim,
was
and
pg.
to
a
presumption of correctness, which may be overcome only by clear
and convincing evidence.
U.S.
at
that
the
433;
Neal,
TCCA's
239
U.S.C.
28
F.3d at
decision
was
§
Petitioner has not
696.
unreasonable
an
Marshall,
2254(e) (1);
459
shown
application
of
either clearly established federal law or the facts in light of
evidence
the
presented.
ineffective
assistance
failure
subpoena
to
Consequently,
of
based
counsel
witnesses
Oliver's
denied
is
trial
on
claim
counsel's
dismissed
and
of
with
prejudice.
Right to Confront Witnesses
c.
Petitioner next asserts that trial counsel was ineffective
in
allowing
them
by
right to
state
the
officers
three
to
testify
complainants
confront witnesses.
writ
application
and
(DE
his
regarding
statements
violation
in
16,
pg.
7)
petition
.
of
to
petitioner's
However,
for
made
in his
discretionary
review,
petitioner
confront
asserted that
witnesses
was
violated
his
Sixth
when
Amendment
the
judge
right
allowed
to
the
officers to introduce statements of nontestifying witnesses and
further,
permitted
the
State
make
to
prejudicial
statements
regarding petitioner assaulting family members despite the fact
that
petitioner
assault.
neither
was
(DE 23,
pg.
859)
charged
with
nor
convicted
of
The state court was never presented
.
with petitioner's current complaint that he was denied effective
assistance
Picard,
admitted.7
federal
is not
made."
6)
.
counsel
of
claim is
enough
.
Wilder,
when
404
this
U.S.
at
evidence
.
.
274
it
that a somewhat
F.3d at 260
statements
Although
275.
somewhat similar,
and
is
well
were
petitioner's
settled that
'sit
similar state-law claim was
(citing Anderson,
459
U.S.
at
Because petitioner has raised an argument based on a legal
theory distinct from that relied upon in the state court, he has
failed
denied.
to
satisfy the exhaustion
Id.
requirement
and his
claim is
at 259.
'
In his supplement, petitioner complains that although he asked appellate
counsel to assert ineffective assistance by his trial counsel (with respect
to illegal search and seizure, compulsory process,
confrontation clause,
Batson Challenge, etc.), his appellate counsel refused.
(DE 36, pg.
2).
However, in his state court writ, filed on December 17, 2015, petitioner
alleged that Tarver and Brooks failed to pursue his "speedy trial interest";
Cohen had a "conflict of interest"; Jimenez failed to obtain a ruling on the
speedy trial motion; and Tarver also failed to investigate and prepare the
case for trial,
as well as subpoena witnesses.
(DE
23-24, pgs.
16-7)
Petitioner raised ineffective assistance only with respect to one of his four
grounds while his remaining grounds were not raised in terms of ineffective
assistance of counsel.
19
Failure to Object to Hearsay
d.
Petitioner next alleges that trial counsel was deficient in
failing
that
object
to
the
hearsay testimony.
to
testimony
officers'
three women witnesses
as
hearsay.
regarding statements made by the
should have been objected to and precluded
record
The
reflects
outside the presence of the jury,
testimony;
however,
Petitioner maintains
during
that
the Court ruled that the statements would be
In any event,
.
held
trial counsel objected to this
admissible as exceptions to the hearsay rule.
240)
hearing
a
pgs.
(DE 23,
217-
petitioner did not raise this issue in his
petition for discretionary review or his state writ application;
consequently, petitioner
remedies
Peoples,
as
claim
this
to
489 U.S. 346,
it
is
his
state
denied.
(1989); Anderson,
349
Petitioner next asserts
failing
illegally
However,
and
exhaust
to
court
Casljille
459 U.s. at
v.
6.
Failure to File Motion to Suppress
e.
in
failed
has
to
file
entered
in
his
a
motion
his
backyard
state
writ,
subjected to an illegal
trial counsel
that
and
was
argue
house.
and
that
(DE
petitioner
alleged
ineffective
the
officers
16,
pg.
11)
he
had
been
search and seizure but did not present
these claims as a denial of his right to effective assistance of
counsel as he now does in his federal writ.
As
a
result,
petitioner's
the
current
state
court
complaint
was
that
20
he
never
was
(DE
23,
pg.
presented
denied
857)
with
effective
assistance
of
petitioner
was
Picard,
counsel
when
subjected
404 U.s.
at
trial
to
counsel
illegal
an
failed
search
to
and
argue
seizure.
Although petitioner's federal claim is
275.
similar to his state law claim, petitioner has failed to satisfy
the
exhaustion
requirement
raising
by
legal theory distinct from that
Wilder,
F.3d at 259-60.
274
an
argument
based
on
a
relied upon in the state court.
Petitioner's claim is,
therefore,
denied.
Failure to Provide Copy of Trial Transcripts
f.
Petitioner states that although he asked his trial
numerous
times
transcripts,
between
his
trial
and
[counse1
complaint
was
copies
for
the
review
Consequently,
petitioner
remedies
his
(1989);
2.
District
previously
not
record
refused
counsel
discretionary
and
court
of
Castille,
denied.
trial
agreement
Office."
This
petition
writ
exhaust
and
an
Oliver's
state
his
Anderson, 459 U.S. at
to
Attorney's
has failed to
claim is
"due
raised in
or
reports
counsel
for
application.
his
489
state
U.S.
court
at
349
6.
Ineffective Assistance on Appeal
Petitioner
also
maintains
assistance when
his
that
habeas
the
appeal.
petitioner
state
(DE
16,
appellate
pg.
contends
court
7)
that
.
In
that
he
counsel
found
his
failed to
could
have
ineffective
raise
been
supplement to
his appellate
21
received
raised
his
counsel was
grounds
on
response,
ineffective
failing
in
allege
on
appeal
failing
to
subpoena
to
ineffective
in
that
trial
witnesses
counsel
was
trial
and
at
failing to request rulings on the motion to suppress and motion
for speedy trial.
However,
that
his
1)
violated;
and
In
in his
state habeas
right
to
he was
2)
application,
speedy
a
trial
and
petitioner argued
process
due
were
subjected to an illegal search and seizure;
he was denied his Sixth Amendment right to confrontation.
3)
Order
its
dismissing
petitioner's
claims,
the
that "[t]he three claims presented in this habeas
already been raised by Applicant
him at the
time
stated
petition have
on appeal or were available
Accordingly,
appeal.
of
court
this
court
to
finds
that
Applicant is not entitled to raise these claims on habeas."
(DE
991)
pg.
23,
received
.
At no time did petitioner raise the claim that he
ineffective
assistance
when
his
appellate
counsel
failed to raise grounds that the state habeas court found could
have
been
review
or
raised
a
on
state
appeal
writ
Castille,
petition
a
application.
has failed to exhaust his
denied.
in
for
discretionary
Consequently,
petitioner
state court remedies and his claim is
489 U.S.
at 349
(1989); Anderson,
459 U.S.
at
6.
3.
Batson Challenge
Lastly,
petitioner
contends
that
African-Americans
were
excluded from the jury "for no other reason than being African22
American
(1986)
violation
in
Petitioner
.
Batson
of
alleges
that
Kentucky,
v.
six
venire
476
U.s.
members
79
who were
African-American were excluded from the jury but fails to state
who
were
they
challenged
further,
fails
identify
them.
presented
Appeals;
4.
state
their
Moreover,
the
to
state
therefore,
why
or
juror
this
court
they
issue
or
459 U.S. at
was
the
to
petitioner has
(1989); Anderson,
were
challenged
numbers
not
Court
Castille,
and
otherwise
or
previously
Criminal
of
failed to exhaust
remedies and his claim is denied.
Court
349
to
by
his State
489
U.S.
at
6.
Requests for a Hearing and for "Time Limitations"
Petitioner
Hearing
(DE
also
and
32)
Section 2254(e)
Oliver's
Petitioner's
a
a
Motion
for
Time
filed
Motion
authorizes evidentiary
(2)
Because
conditions.
adjudicate
has
evidentiary
an
petition,
Motion
for
his
Time
for
An
Evidentiary
Limitation
(DE
34)
hearings under narrow
hearing
unnecessary
motion is DENIED.
Limitation,
which
(DE
to
32).
essentially
reurges his Speedy Trial Motion and seeks that his indictment be
dismissed,
is also DENIED.
(DE 34)
V. Certificate of Appealability
The Court next determines whether to issue a certificate of
appealability
2254
(2003)
(COA)
Proceedings;
.
See Rule
Miller-El
v.
11 (a)
of
Cockrell,
(citing 28 U.S.C. § 2253(c)(1)).
23
the
537
Rules
U.S.
Governing
322,
§
335-36
A COA may issue only if
a
petitioner
makes
"a
substantial
constitutional right."
court
rejects
merits,
U.S.C.
28
petitioner's
a
showing of
the
2253(c) (2).
§
denial
If
constitutional
of
a
district
a
claims
on
the
the petitioner must demonstrate "that reasonable jurists
would find the district court's assessment of the constitutional
claims
484
debatable
(2000)
jurists
or
wrong."
Slack
v.
McDaniel,
529
U.S.
473,
This requires a petitioner to show "that reasonable
.
could
debate
whether
petition
the
should
have
been
resolved in a different manner or that the issues presented were
'adequate
deserve
to
encouragement
proceed
to
further.'"
Miller-El, 537 U.S. at 336 (citation omitted).
A
district
requiring
Johnson,
further
debate
the
the
may
briefing
211 F.3d 895,
forth above,
not
court
Court
898
or
COA
a
concludes
2000)
that
that
sponte
sua
argument.
(5th Cir.
conclusion
federal habeas relief.
deny
See
Alexander
v.
For the reasons set
.
reasonable
Oliver
without
was
jurists would
not
entitled
to
As such, a COA will not issue.
VI. Conclusion and Order
Petitioner has
failed to establish that
the
state court's
rejection of the aforementioned claims on the merits during his
state
habeas
involved
an
federal
law,
States,
or
corpus
proceedings
unreasonable
as
(2)
was either
application
determined by the
based on
an
of,
Supreme
unreasonable
24
(1)
contrary to,
clearly
Court
of
or
established
the
determination
United
of
the
facts
in
light
of
the
evidence
presented
state trial and habeas corpus proceedings.
Davon Oliver's
in
the
petitioner's
As a result,
Darrick
federal habeas corpus petition does not warrant
federal habeas corpus relief.
Accordingly,
based on the
foregoing reasons,
IT
IS HEREBY
ORDERED that:
1.
Federal habeas corpus relief is DENIED and petitioner
Darrick Davon Oliver's Petition for Writ of Habeas Corpus
pursuant
to 28
U.S.C.
2254
petition
§
(DE
16)
is
DISMISSED WITH PREJUDICE;
2.
No Certificate of Appealability shall issue in this case;
and
3.
All
other
remaining motions,
including petitioner's
Motion for an Evidentiary Hearing (DE 32) and ''Motion for
Time Limitation" (DE 34), are DENIED, and this case is
now CLOSED.
It is so ORDERED.
SIGNED this
day of November, 2017.
ORLANDO L. GARCIA
Chief United States District Judge
25
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