Murry v. Davis

Filing 14

ORDERED that Petitioners Application for Habeas Corpus Relief under 28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE as time-barred to the extent Petitioner challenges his conviction in Cause No. 2014-61-C2 and DENIED to the extent Petitioner challenges his conviction in Cause No. 2014-976-C2. It is further ORDERED that a certificate of appealability is DENIED. Signed by Judge Robert Pitman. (tb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT of TEXAS
WACO DIVISION

FABIEN MURRY #2010276
V.
LORIE DAVIS

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W-16-CA-380-RP

ORDER
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (#1) and Respondent’s Answer (#12). Petitioner, proceeding pro se, has paid the filing fee.
For the reasons set forth below, Petitioner’s application for writ of habeas corpus is denied.
STATEMENT OF THE CASE
A.

Background
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant

to two judgments and sentences of the 54th District Court of McLennan County, Texas in Cause
Nos. 2014-61-C2 and 2014-976-C2. In Cause No. 2014-61-C2, Petitioner was charged by indictment
with committing aggravated sexual assault against a child, and an enhancement paragraph alleging
Petitioner had a prior conviction in 2002 for possession of methamphetamine, a controlled substance.
Ex parte Murry, WR-85,541-01, SHCR (#13-5) at 112–15. In Cause No. 2014-976-C2, Petitioner
was charged by indictment with possessing with intent to deliver, methamphetamine, a controlled
substance, weighing between 1 and 4 grams, plus an enhancement paragraph alleging Petitioner had
a prior conviction in 2008 for possession of methamphetamine, a controlled substance. Ex parte
Murry, WR-85,541-02, SHCR (#13-10) at 62–63.
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On June 2, 2015, pursuant to a plea agreement, Petitioner pleaded guilty to both causes and
true to both enhancement paragraphs and was sentenced to 30 years of imprisonment for each cause,
to run concurrently. SHCR-01 (#13-5) at 117-124; SHCR-02 (#13-10) at 65-72. Petitioner did not
appeal.
Petitioner filed an application for a state writ of habeas corpus challenging each conviction
on May 6, 2016. SHCR-01 (#13-5) at 18; SHCR-02 (#13-10) at 21. On August 24, 2016, the Court
of Criminal Appeals (CCA) dismissed the application challenging the conviction for aggravated
sexual assault of a child for failure to comply with Rule 73.1 of the Texas Rules of Appellate
Procedure. SHCR-01 (#13-1). On the same day, the CCA denied, without written order, the
application challenging the conviction for possession of methamphetamine with intent to deliver.
SHCR-02 (#13-6).
B.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

He is actually innocent pursuant to Schlup v. Delo, 513 U.S. 298 (1995).

2.

His counsel was ineffective for failing to:
a.

advise him of the legal ramifications of his guilty plea;

b.

object to the illegal search of his home and the illegal search warrant;

c.

subpoena witnesses to testify regarding both the methamphetamine and
sexual assault charges;

d.

sever his criminal cases.

Pet. (#1) at 6.

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C.

Request for Evidentiary Hearing
Petitioner asserts that his application for habeas relief raises factual questions, which have

not been addressed by the state courts and that the state has failed to provide Petitioner with a full
and fair hearing concerning his application. Petitioner concludes that he is entitled to an evidentiary
hearing to resolve the factual questions left unresolved by the state courts.
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, 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
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, 562 U.S. at 98.

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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 multipart 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.” 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 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

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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.
B.

Evidentiary Hearing
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
unavailable; or
(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.

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Petitioner has failed to plead any allegations that would entitle him to a hearing. He only asserts
conclusory positions that he was not provided a full and fair hearing. Accordingly, Petitioner’s
request for an evidentiary hearing is denied.
C.

Statute of Limitations
Federal law establishes a one-year statute of limitations for state inmates seeking federal

habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
Petitioner’s conviction in Cause No. 2014-61-C2 became final, at the latest, on July 2, 2015,
at the conclusion of time during which he could have appealed his conviction. See TEX . R. APP .
P. 26.2(a). Therefore, Petitioner had until July 5, 2016, to timely file his federal application.
Petitioner did not execute his federal application for habeas corpus relief until September 5, 2016,
after the limitations period had expired.
Petitioner did file a state habeas application on May 6, 2016. That filing, however, did not
toll his limitations period because it was dismissed by the CCA for failure to comply with Rule 73.1
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of the Texas Rules of Appellate Procedure. SHCR-01 (#13-1). An application is not properly filed,
for purposes of tolling, when it is not in compliance with applicable laws governing filings. Artuz
v. Bennett, 531 U.S. 4, 8–10 (2000); Larry v. Dretke, 361 F.3d 890, 893-94 (5th Cir. 2004).
Therefore, Petitioner’s limitations period was unaffected by his state habeas petition.
It may be that Petitioner is contending the untimeliness of his application, as it pertains to
his conviction in 2014-61-C2, should be excused because he is actually innocent. In McQuiggin v.
Perkins, 133 S. Ct. 1924 (2013), the Supreme Court held a prisoner filing a first-time federal habeas
petition could overcome the one-year statute of limitations in § 2244(d)(1) upon a showing of “actual
innocence” under the standard in Schlup v. Delo, 513 U.S. 298, 329 (1995). A habeas petitioner,
who seeks to surmount a procedural default through a showing of “actual innocence,” must support
his allegations with “new, reliable evidence” that was not presented at trial and must show that it was
more likely than not that, in light of the new evidence, no juror, acting reasonably, would have voted
to find the petitioner guilty beyond a reasonable doubt. See Schlup, 513 U.S. at 326–27 (1995); see
also House v. Bell, 547 U.S. 518 (2006) (discussing at length the evidence presented by the petitioner
in support of an actual-innocence exception to the doctrine of procedural default under Schlup).
“Actual innocence” in this context refers to factual innocence and not mere legal sufficiency.
Bousely v. United States, 523 U.S. 614, 623–624 (1998). In this case, Petitioner merely asserts that
the child who accused him of sexual assault was not reliable. He has made no valid attempt to show
he was actually innocent of the crime to which he previously pleaded guilty.
To the extent Petitioner challenges his conviction in Cause No. 2014-61-C2, the record does
not reflect that any unconstitutional state action impeded Petitioner from properly filing for federal
habeas corpus relief prior to the end of the limitations period. Furthermore, Petitioner has not shown
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that he could not have discovered the factual predicate of his claims earlier. Finally, the claims do
not concern a constitutional right recognized by the Supreme Court within the last year and made
retroactive to cases on collateral review.
D.

Actual Innocence Claim
To the extent Petitioner is attempting to raise a freestanding innocence claim, his claim fails.

The Fifth Circuit does not recognize actual innocence as a basis for federal relief under § 2254.
Lucas v. Johnson, 132 F.3d 1069, 1075-76 (5th Cir. 1998); see also United States v. Fields, 761 F.3d
443, 479 (5th Cir. 2014) (denying request for a certificate of appealability on a claim of “actual
innocence”). Therefore, Petitioner’s claim of actual innocence is denied.
E.

Unexhausted and Procedurally Barred Claims
Petitioner failed to properly exhaust his state court remedies with respect to his claim of

ineffective assistance of counsel for failing to subpoena witnesses in Cause No. 2014-976-C2. As
a consequence, this claim is procedurally barred.
The exhaustion doctrine requires that the state courts be given the initial opportunity to
address and, if necessary, correct alleged deprivations of federal constitutional rights. Castille v.
Peoples, 489 U.S. 346, 349 (1989). In order to satisfy the exhaustion requirement, a claim must be
presented to the highest court of the state for review. Richardson v. Procunier, 762 F.2d 429, 431
(5th Cir. 1985). Moreover, all of the grounds raised in a federal application for writ of habeas corpus
must have been “fairly presented” to the state courts prior to being presented to the federal courts.
Picard v. Conner, 404 U.S. 270, 275 (1971). In other words, in order for a claim to be exhausted,
the state court system must have been presented with the same facts and legal theory upon which the
petitioner bases his assertions. Id. at 275–77. Where a “petitioner advances in federal court an
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argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy
the exhaustion requirement.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (citing Vela v.
Estelle, 708 F.2d 954, 958 n.5 (5th Cir. 1983)). A federal claim is not exhausted if it has been
presented to the state courts using only a state-law basis. See Duncan v. Henry, 513 U.S. 364, 366
(1995) (per curiam). Furthermore, a claim that is presented to the highest state court in a procedural
context in which its merits will not be considered is not exhausted. Castille, 489 U.S. at 351.
Petitioner’s claim of ineffective assistance of counsel for failing to subpoena witnesses in
Cause No. 2014-976-C2 was not presented on the same ground in his state habeas application. In his
state application, Petitioner asserted that counsel was ineffective for failing to investigate or confer
with witnesses recommended by Petitioner and that counsel failed to ensure subpoenas were
delivered. SHCR-01 (#13-5) at 9-10. In his petition before this Court, Petitioner argues that his
attorney “failed to subpoena witnesses which could have testified with regards to the drugs and the
allegations of a sexual nature.” Pet. (#1) at 6. The failure of counsel to subpoena alleged witnesses
and the failure of counsel to investigate are not the same. Moreover, Petitioner’s state application
implies that his counsel did attempt to subpoena at least some witnesses, but there was a problem
with the delivery of the subpoenas.
With regard to this unexhausted claim, Petitioner is consequentially procedurally barred from
federal habeas corpus review. Even where a claim has not been reviewed by the state courts, this
Court may find that claim to be procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991). If a petitioner has failed to exhaust his state court remedies and the state court to which he
would be required to present his unexhausted claims would now find those claims to be procedurally
barred, the federal procedural default doctrine precludes federal habeas corpus review. Id.; see
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Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (finding unexhausted claim, which would be
barred by the Texas abuse-of-the-writ doctrine if raised in a successive state habeas petition, to be
procedurally barred).
Here, Petitioner has failed to exhaust his claim that he was denied effective assistance of
counsel because his counsel failed to subpoena witnesses in Cause No. 2014-976-C2. However, if
the Court required Petitioner to present this claim to the Texas Court of Criminal Appeals to satisfy
the exhaustion requirement, the Texas Court of Criminal Appeals would find it to be procedurally
barred under the Texas abuse-of-the-writ doctrine. See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.
1995) (“[T]he highest court of the State of Texas announced that it would as a ‘rule’ dismiss as abuse
of the writ ‘an applicant for a subsequent writ of habeas corpus rais[ing] issues that existed at the
time of his first writ.’”) (quoting Ex Parte Barber, 879 S.W.2d 889, 892 n. 1 (Tex. Crim. App.
1994). Further, the Texas habeas corpus statute prohibits a Texas court from considering the merits
of, or granting relief based on, a subsequent writ application filed after the final disposition of an
inmate’s first application unless he demonstrates the statutory equivalent of cause or actual
innocence. TEX . CODE CRIM . PROC. ANN . art. 11.07 § 4 (West Supp. 1996). In addition, for the Court
to reach the merits of this claim, Petitioner “must establish cause and prejudice from [the court’s]
failure to consider his claim.” Fearance, 56 F.3d at 642 (citations omitted). Petitioner has failed to
establish cause and prejudice, and he has not shown that he is actually innocent. Therefore,
Petitioner’s claim of ineffective assistance of counsel for failure to subpoena witnesses in Cause No.
2014-976-C2 must be dismissed.

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F.

Guilty Plea
Petitioner pleaded guilty to both Cause Nos. 2014-61-C2 and 2014-976-C2, and consequently

any remaining claims for relief are waived. A guilty plea “and the ensuing conviction encompasses
all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a
lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). A plea of guilty amounts to more
than a mere confession; it is instead “an admission that [the defendant] committed the crime charged
against him.” Id. at 570. A voluntary guilty plea waives all non-jurisdictional defects in the
proceedings except claims of ineffective assistance of counsel relating to the voluntariness of the
plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Smith v. Estelle, 711 F.2d 677, 682
(5th Cir. 1983).
To be valid, a guilty plea must be voluntary, knowing and intelligent. United States v.
Washington, 480 F.3d 309, 315 (5th Cir. 2007). The test for determining a guilty plea’s validity is
“whether the plea represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). A court assessing
the validity of a plea must look to “all of the relevant circumstances surrounding it and consider such
factors as whether there is evidence of factual guilt.” Matthew v. Johnson, 201 F.3d 353, 364-65 (5th
Cir. 2000). The defendant must also have notice of the charges against her, understand the
constitutional protections that she has waived, and have advice from competent counsel.
Washington, 480 F.3d at 315 (citation omitted). Furthermore, the defendant must be competent, and
the plea must “not be the product of ‘actual or threatened physical harm, or . . . mental coercion
overbearing the will of the defendant’ or of state-induced emotions so intense that the defendant was
rendered unable to weigh rationally his options with the help of counsel.” Matthew, 201 F.3d at 365
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(quoting Brady v. United States, 397 U.S. 742, 750 (1962)). The trial court must inform the
defendant of the consequences of his plea, but “the defendant need only understand the direct
consequences of the plea; he need not be made aware of every consequence that, absent a plea of
guilty, would not otherwise occur.” United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000)
(per curiam). Finally,
[w]hen a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea. He may only attack the voluntary and intelligent
character of the guilty plea by showing that the advice he received from counsel was
not within the standards set forth in McMann v. Richardson, 397 U.S. 759, 770-71
(1970).
Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also United States v. Cothran, 302 F.3d 279,
285-86 (5th Cir. 2002) (holding “[a] plea of guilty admits all the elements of a formal criminal
charge and waives all non-jurisdictional defects in the proceedings leading to conviction”).
A guilty plea is “open to attack on the ground that counsel did not provide the defendant with
‘reasonably competent advice.’” Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v.
Richardson, 397 U.S. 759, 770-71 (1970)). “Counsel is needed so that the accused may know
precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so
that he is treated fairly by the prosecution.” Argersinger v. Hamlin, 407 U.S. 25, 34 (1972).
Counsel’s advice to a defendant to accept a proposed plea agreement, in light of the facts and
circumstances of the case, is normally considered to be a strategic choice that rests within counsel’s
professional judgment. See Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992). To establish a claim
that trial counsel’s defective assistance rendered a plea involuntary, the petitioner must show that
counsel’s representation fell below an objective standard of reasonableness and a reasonable
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probability exists that, “but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Petitioner alleges that his counsel failed to advise him on the legal ramifications of his guilty
pleas. He fails to allege any specific legal ramifications about which he was not informed and fails
to explain any consequences of his guilty pleas that were not adequately explained. The record shows
that Petitioner was admonished of the punishment he faced. SHCR-02 (#13-10) at 65. The state court
determined he was mentally competent, was aware of the consequences of his guilty pleas, and was
making his plea freely and voluntarily. Id. at 70-74. Petitioner has failed to allege any facts to refute
the record or indicate that his pleas of guilty were anything but voluntary, knowing and intelligent.
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. There is no evidence that Petitioner’s plea was not
voluntary, knowing and intelligent. Moreover, Petitioner’s voluntary guilty plea effectively waives
his remaining claims that counsel was ineffective for failing to object to the allegedly illegal search
of his home and the illegal search warrant and failing to sever his criminal cases. Accordingly, the
Court is of the opinion that 28 U.S.C. § 2254, as amended by the AEDPA, bars habeas corpus relief.

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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, the Court shall not issue a certificate of appealability.

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It is therefore ORDERED that Petitioner’s Application for Habeas Corpus Relief under
28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE as time-barred to the extent Petitioner
challenges his conviction in Cause No. 2014-61-C2 and DENIED to the extent Petitioner challenges
his conviction in Cause No. 2014-976-C2.
It is further ORDERED that a certificate of appealability is DENIED.
SIGNED on April 10, 2017.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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