Bailey v. Davis

VICTOR E. BAILEY, TDCJ No. 01950776, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

CIVIL NO. SA-17-CA-481-FB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

April 24, 2018

MEMORANDUM OPINION AND ORDER

Petitioner Victor Bailey, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for aggravated robbery. As required by Rule 4 of the Rules Governing Section 2254 Cases, the Court conducted a preliminary review of the petition. Having considered the habeas application (ECF No. 1), respondent's Answer (ECF No. 14), the record (ECF Nos. 15 & 16), Mr. Bailey's Reply (ECF No. 19), and applicable law, the Court finds the petition should be DENIED.

I. Procedural Background

A grand jury indictment returned June 13, 2011, charged Victor Bailey, as a habitual offender, with aggravated robbery with a deadly weapon. (ECF No. 15-2 at 9; ECF No. 16-9 at 71). A jury found the petitioner guilty as charged, and he pleaded true to the indictment's enhancement allegations. (ECF No. 16-9 at 55). The 175th District Court, Bexar County, Texas, assessed punishment at 40 years' imprisonment. (ECF No. 15-2 at 30; ECF No. 16-9 at 66). Mr. Bailey appealed, asserting the trial court erred in overruling his motion for a directed verdict. The Fourth Court of Appeals affirmed the judgment of the trial court. Bailey v. State, No. 04-14-00582-CR, 2015 WL 797641, *3 (Tex. App.-San Antonio Feb. 25, 2015, no pet.).

Mr. Bailey sought a state writ of habeas corpus on February 22, 2016, alleging he was denied the effective assistance of counsel. (ECF No. 16-9 at 5, 11). He also asserted insufficiency of the evidence and Batson claims. (ECF No. 16-9 at 20, 22). The habeas trial court designated issues for resolution. (ECF No. 16-9 at 73). Mr. Bailey's retained trial counsel, Mr. Reece, Mr. Gebbia, and Ms. Anderson, filed affidavits in the state habeas action. (ECF No. 16-9 at 81-86, 93-95, 105-06). The habeas trial court, which was also the convicting court, issued findings of fact and conclusions of law and recommended the writ be denied. (ECF No. 16-9 at 114-25). Mr. Bailey supplemented his habeas pleadings on February 24, 2017, and the habeas trial court issued findings of fact and conclusions of law, recommending the supplemental claims be denied. (ECF No. 16-7). On April 5, 2017, the Court of Criminal Appeals denied the habeas application on the findings of the trial court. Ex parte Bailey, No. WR-85,068-01, 2017 WL 3205297 (Tex. Crim. App. 2017); ECF No. 16-5.

In this section 2254 action, petitioner Bailey alleges: (1) he was denied the effective assistance of counsel because counsel: failed to conduct an "independent investigation;" failed to move to exclude evidence of his prior conviction; failed to seek a jury instruction on self-defense; and "abandoned" him at trial; (2) he was denied his right to due process and a fair trial because the prosecutor excluded an African-American juror based on his race; and (3) "The prosecutor failed to cede all favorable evidence pursuant to the Michael Morton Act . . ." (ECF No. 1 at 10).

II. Factual Background

The Fourth Court of Appeals summarized the facts presented at trial as follows:

It is undisputed that in the late morning hours of July 6, 2010, Bailey arrived at Classic Diamond Company seeking to sell two rings. Classic Diamond Company is a jewelry store owned and operated by Ralph Benavides. The store front is equipped with a cage-like security door that can only be unlocked by a person behind the interior display case. Once Benavides buzzed Bailey into the store, Benavides proceeded to inspect the rings while Bailey stood watch. A physical altercation ensued between the two men, resulting in property damage to the store and physical injury to Bailey. The blood left at the scene was stipulated to contain the DNA of Bailey.

Benavides testified that he immediately recognized that the stones in the rings were not genuine. Once Benavides informed Bailey of his findings, Benavides testified that Bailey became agitated, said that he paid $2,000 for the pair of rings, and simultaneously pulled a pistol from his waistband and pointed it at Benavides. Once the weapon was revealed, Bailey said, "I don't want to hurt you, I don't want to shoot you, I just want money." Benavides claimed that he gave Bailey $50-$75 that he had on his person, and that Bailey placed the money in his pocket. Benavides stated that because he was ". . . scared to death" that he would be harmed, he instinctively grabbed for the gun and a struggle followed.

Benavides tried to disarm Bailey, but was unsuccessful. Once the men gained some distance between one another, Bailey tried to roll over the top of a glass showcase but it shattered and he fell into the showcase of jewelry and broken glass. At that time, Benavides retrieved a gun from a desk. Benavides said that he saw Bailey take a tray of rings from the showcase that he fell into. Once Bailey freed himself from the glass box, Benavides pressed the button that unlocked the door in hopes that Bailey would leave. Bailey then opened the door and paused in the iron-barred cage that is installed in front of the entrance to the store, dropped the tray along with the rings, and walked away. After the State rested, the defense moved for a directed verdict of acquittal. The trial court denied the motion.

Bailey testified in his defense that after Benavides told him the rings were fake, Bailey asked him to check again. At that time, Bailey noticed that Benavides's "diamond checker" was giving off a noise and green lights, meaning that the diamonds were genuine. Bailey asked for his rings back, but Benavides refused. The two men began to argue. Bailey stated that Benavides was the first to pull out a gun. Bailey stated that he never asked Benavides for any money. Benavides trapped Bailey in the security "cage" and when Bailey attempted to buzz himself out, a physical struggle ensued. Bailey stated that the glass showcase broke and that he cut his arm, but that he did not fall through it as Benavidesdescribed because it was too narrow. Even though Benavides still had Bailey's rings, Bailey tried to leave the store because he did not want to get in trouble for possessing a gun as a convicted felon. Bailey managed to press the button to get out, and left the store. Because Bailey testified, the jury was made aware of his prior convictions.

Bailey, 2015 WL 797641, at *1.

Mr. Bailey testified he left the store after the altercation, got into a grey truck he had borrowed from a friend and parked in the parking lot, and drove away. (ECF No. 15-12 at 40-41). Mr. Benavides testified Mr. Bailey fled out the door of the jewelry store and across the street; he told the police he saw a white sedan, possibly a Grand Marquis or what looked like a decommissioned police squad car, stop in the street in front of the store and he observed Mr. Bailey getting into that car. (ECF No. 15-11 at 40-41, 44-45, 90).¹ During cross-examination, the prosecution noted Mr. Bailey told an investigator he or his girlfriend owned a Crown Victoria at the time of the robbery, and that a Crown Victoria is "kind of like a police car." (ECF No. 15-12 at 48).

III. Standard of Review

A. Review of State Court Adjudications

Mr. Bailey's habeas petition is governed by the standard of review provided by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). 28 U.S.C. § 2254. A petitioner may not obtain federal habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim 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 based on anunreasonable determination of the facts in light of the evidence presented in the state court proceeding. Id. § 2254(d); Brown v. Payton, 544 U.S. 133, 141 (2005). This difficult standard stops just short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).

A federal habeas court's evaluation of the state court's application of clearly established federal law focuses on whether the state court's decision was objectively unreasonable and not whether it was incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). As long as "fairminded jurists could disagree" on the correctness of the state court's decision, its determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Additionally, a reviewing federal court presumes the state court's factual findings are sound unless the petitioner rebuts the "presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005); Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir. 2010). The presumption afforded factual findings is even stronger when, as in this matter, the state habeas judge making the findings is also the convicting court. See Armstead v. Collins, 37 F.3d 202, 207-08 (5th Cir. 1994).

B. Review of Sixth Amendment Claims

The Court reviews claims of the alleged ineffective assistance of trial counsel under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a petitioner must demonstrate counsel's performance was deficient and this deficiency prejudiced his defense. Id. at 687-88, 690. The Supreme Court has held that"[s]urmounting ...