Boone v. Davis

RODNEY NATHANIEL BOONE, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

No. 4:14-CV-945-A

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

December 30, 2016

MEMORANDUM OPINION and ORDER

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Rodney Nathaniel Boone, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, Director of TDCJ, Respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.

I. Procedural History

In 2008 petitioner was indicted in Tarrant County, Texas, Case No. 1289758D, for possession with intent to deliver heroin in the amount of one gram or more but less than four grams (count one) and the lesser included offense of possession of heroin in the amount of one gram or more but less than four grams (count two). (Clerk's R. at 5.) The indictment also included a habitual offender notice. (Id.) On June 19, 2013, a jury found petitioner guilty on count one, petitioner pleaded true to the habitual offender notice, and the trial court assessed his punishment at thirty years' confinement.¹ (Id. at 77.) On appeal, the Second District Court of Appeals of Texas affirmed the trial court's judgment. (Mem. Op. at 15.) Petitioner did not file a petition for discretionary review but did file two relevant state postconviction habeas applications challenging his 2013 conviction. The first was dismissed because the court of appeals's mandate had not issued when it was filed in the trial court. (State Habeas R., WR-54,131-02, "Action Taken.") The second was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (State Habeas R., WR-54,131-03, "Action Taken.")

The state appellate court summarized the background facts ofthe case as follows:

In July 2012, Fort Worth Police Department (FWPD) Officer Juan Sandoval obtained a search warrant for a house. Officer Sandoval organized a team of approximately twenty officers to execute the warrant. On an early evening, after knocking on the house's front door and receiving no response, the officers opened the door by force and entered the house. Seconds later, while Officer Sandoval stood in the backyard of the house, he saw six people, including appellant, running out of the back door. While fleeing, appellant dropped a clear plastic baggie in the back room of the house.

Officer Sandoval found the baggie that appellant had dropped. In the baggie and near it, Officer Sandoval saw several clear capsules containing a brown powdery substance that he believed was heroin.

In the house, officers found another person who had possessed drugs, more narcotics (heroin, cocaine, and Xanax) in the kitchen and bedroom areas of the house, a coffee grinder containing residue, a digital scale containing brown residue, and two cell phones. Appellant said that one of the cell phones belonged to him. The police did not find evidence on the phones that connected anyone to the delivery or sale of drugs.

When the police detained appellant, he had roughly $666. Specifically, appellant had two $100 bills, one $50 bill, seven $20 bills, twelve $10 bills, twenty-six $5 bills, twenty $1 bills, and over $5 in change. Officer Sandoval believed that the amount of money that appellant had possessed was "consistent with individuals who sell narcotics." Also, Officer Sandoval believed that appellant had possessed an amount of heroin that exceeded what he could personally use.

(Mem. Op. at 2-3.)

II. Issues

Generally, petitioner's grounds for relief involve allegations of ineffective assistance of trial counsel, prosecutorial misconduct, and trial court error. (Pet. at 6; Pet'r's Mem. at 1-7; Pet'r's Supp. Mem. at 1-3.) His grounds are multitudinous and addressed as thoroughly as practical below.

III. Rule 5 Statement

Respondent does not believe the petition is subject to the successive-petition bar or is untimely but does assert that one or more of petitioner's claims are unexhausted and/or procedurally barred. (Resp't's Answer at 5.) 28 U.S.C. §§ 2244(b), (d), 2254(b)(1).

IV. Discussion

Legal Standard for Granting Habeas Corpus Relief

A § 2254 habeas petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court or that is based on an unreasonable determination of the facts in light of the recordbefore the state court. Harrington v. Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. § 2254(d)(1)-(2). This standard is difficult to meet and "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Harrington, 562 U.S. at 102.

Additionally, the statute requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000). This presumption applies to both express and implied findings of fact. Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001). Absent express findings, a federal court may imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002). Further, when the Texas Court of Criminal Appeals denies a federal claim in a state habeas corpus application without written opinion, afederal court may presume "that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary" and applied the correct "clearly established federal law, as determined by the Supreme Court of the United States" unless there is evidence that an incorrect standard was applied, in making its decision. Johnson v. Williams, — U.S. —, 133 S. Ct. 1088, 1094 (2013); Harrington, 562 U.S. at 99; Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2004).

(1) Ineffective Assistance of Counsel

A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on the first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). See also Smith v. Robbins, 528 U.S. 259, 287-88 (2000) (applying Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel, a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. Both prongs of the Strickland test must be met todemonstrate ineffective assistance. Id. at 687, 697. In applying this test, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.

The Supreme Court recently clarified the manner in which a federal court is to consider an ineffective assistance of counsel claim raised in a habeas petition subject to AEDPA's strictures:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Harrington, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410). Accordingly, it is necessary only to determine whether the state courts' rejection of petitioner's ineffective assistance claims was contrary to or an objectively unreasonable application ofStrickland. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson v. Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005); Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).

Petitioner's ineffective assistance claims are construed as follows: Trial counsel, Brian Walker, was ineffective by-

(1) failing to file a motion to suppress or to object to evidence of a gun and drugs found in the first-floor bedroom and drugs found in the kitchen;

(2) failing to have a firm command of the facts and governing law so as to object and preserve appealable issues;

(3) failing to investigate evidence favorable to the defense;

(4) allowing the state to misstate material evidence and make inflammatory attacks on him during closing argument without objection; and

(5) representing him with a conflict of interest.

(Pet. at 6; Pet'r's Mem. 2-4.)

Respondent asserts that...