Raymer v. Stephens

RUSSELL LYNN RAYMER, (TDCJ-CID #1385962) Petitioner, v. WILLIAM STEPHENS, Respondent.

CIVIL ACTION NO. H-13-1338

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

September 23, 2014

MEMORANDUM AND OPINION

The petitioner, Russell Lynn Raymer, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging a 2006 state felony conviction for aggravated robbery. The respondent filed a motion for summary judgment, (Docket Entry No. 16), with a copy of the state court record. Raymer filed a response. (Docket Entry No. 19). Based on careful consideration of the pleadings, the motion and response, the record, and the applicable law, this court grants the respondent's motion and, by separate order, enters final judgment. The reasons for these rulings are set out below.

I. Background

A jury found Raymer guilty of the felony offense of aggravated robbery. (Cause Number 05-04416-CRF-272). Raymer pleaded true to the enhancement paragraphs alleging a prior conviction in Cause Number 05-04416-CRF-272. On July 13, 2006, the court sentenced Raymer to a 68-year prison sentence.

The Tenth Court of Appeals of Texas affirmed Raymer's conviction on July 23, 2008. That court summarized the evidence, as follows:

On the afternoon of April 4, 2005, Mary Garcia was working as the assistant man[a]ger at the Handi-Stop convenience store in Bryan,Texas. That day, a white male wearing a homemade black mask, a plaid shirt, and yellow rubber gloves entered the store. The robber pointed a sawed-off shotgun at Garcia and demanded cash. Garcia gave him $200 from the register; the robber placed the money in a yellow Dollar General bag and fled. Garcia called the police and later described the man as a skinny white male, around 5'7", with blue eyes, and light brown eyebrows. Francis Guevara lived next door to the Handi-Stop. Near the time of the robbery, she saw a man sitting in the driver's seat of a truck. She then watched as another male came running from the direction of the store. He was carrying a yellow Dollar General bag, and when he jumped a fence, she saw money fall out of the bag. After returning to retrieve the money, he entered the passenger side of the truck. Guevara was able to memorize the license plate number and later gave it to police.

When police first attempted to check the license plate number, it was not valid. Officer Curtis, believing that Guevara may have mistaken a letter such as a zero for the letter "O," changed one of the letters and the dispatcher responded that the license plate number matched that of a green truck.

After locating the vehicle, officers attempted to stop the truck on a traffic violation and a high-speed chase ensued. Raymer was driving the truck at the time and was the only occupant; he eventually stopped the truck and was apprehended when he tried to run away on foot. Raymer was taken to jail and booked, where he was found to have $159.14 in his possession. Police later searched his vehicle and found a plaid shirt, a mask, yellow rubber gloves, and loaded sawed-off shotgun.

Detective Darrell Fikes testified that he obtained a custodial statement from Raymer in which he admitted to committing the robbery at the Handi-Stop, with an accomplice, Shane Weldon. Raymer claimed that Weldon was the get-away driver and that he committed the robbery because he owed Weldon $2,000 for drug purchases. Fikes also testified that Raymer admitted to committing a robbery at Tobacco & More, a store in Bryan, Texas, two days before the robbery at the Handi-Stop. He testified that Raymer told him that the shotgun he used in the robbery was the same one recovered from his truck. He also implicated Weldon as having participated in several other robberies in the area. A videotape of the Tobacco & More robbery was admitted into evidence and played for the jury.

Raymer took the stand and argued that he was denied food when he made his confession. He also denied any involvement in the

robberies of both the Handi-Stop and Tobacco & More. He further argued that it was Weldon who committed the robberies, and that he gave a false confession because he was under the influence of drugs. Raymer admitted that he had previously been sentenced to prison for several different theft and burglary convictions.

Raymer v. State, No. 10-06-00354-CR, 2008 WL 2840882, at *1-2 (Tex. App. - Waco 2008, pet. ref'd) (not designated for publication).

On June 7, 2007, Raymer filed his first state habeas application challenging his conviction. The application was dismissed because his direct appeal was pending. Ex parte Raymer, Application Number 48,857-02 at cover. On December 22, 2008, Raymer filed his second state habeas application, requesting permission to file an out-of-time petition for discretionary review (PDR), which the Texas Court of Criminal Appeals granted. Ex parte Raymer, AP-76,126. On August 19, 2009, the Court of Criminal Appeals refused Raymer's request. Raymer v. State, P.D.R. No. 0526-09.

On November 15, 2010, Raymer filed a third state habeas application. Ex parte Raymer, Application Number 48,857-04 at cover. On July 3, 2013, the Court of Criminal Appeals denied the application without written order. Id. at cover.

On May 6, 2013, this court received Raymer's federal petition. Raymer contends that his conviction is void for the following reasons:

(1) Trial counsel, Bruno A. Shimek, rendered ineffective assistance of counsel by:

(a) failing to file a motion for an expert witness;

(b) failing to interview eyewitnesses;

(c) failing to challenge five jurors for cause; and

(d) failing to object to improper statements made by the prosecutor during closing argument.

(2) Raymer's right to a fair trial was violated by the use of his involuntary statement.

(3) His due process rights were violated by the prosecutor's prejudicial comments during voir dire.

(4) His Sixth and Fourteenth Amendment rights to confront witnesses against him were violated.

(5) Appellate counsel rendered ineffective assistance of counsel by:

(a) failing to raise the issue of the court's improper admission of hearsay testimony; and

(b) failing to raise the issue of a Confrontation Clause violation.

(6) His Fifth Amendment right was violated by the use of a statement given under the influence of drugs and alcohol.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 7-25). Each claim is considered below.

II. The Applicable Legal Standards

This court reviews Raymer's petition for writ of habeas corpus under the federal habeas statutes as amended by the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002); Nobles v. Johnson, 127 F.3d 409, 413 (5th Cir. 1997), citing Lindh v. Murphy, 521 U.S. 320 (1997). Subsections 2254(d)(1) and (2) of AEDPA set out the standards of review for questions of fact, questions of law, and mixed questions of fact and law that result in an "adjudication on the merits." An adjudication on the merits "is a term of art that refers to whether a court's disposition of the case is substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

The AEDPA provides as follows, in pertinent part:

(d) 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.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

A state-court determination of questions of law and of mixed questions of law and fact is reviewed under 28 U.S.C. § 2254(d)(1) and receives deference unless it "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state-court decision is "contrary to" Supreme Court precedent if: (1) the state court's conclusion is "opposite to that reached by [the Supreme Court] on a question of law" or (2) the "state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at an opposite result. Williams v. Taylor, 120 S. Ct. 1495 (2000). A state court unreasonably applies Supreme Court precedent if: (1) it unreasonably applies the correct legal rule to the facts of a particular case; or (2) it "unreasonably extends a legal principle from [ Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 1495. In deciding whether a state court's application was unreasonable, this court considers whether the application was "objectively unreasonable." Id. at 1495; Penry v. Johnson, 215 F.3d 504, 508 (5th Cir. 2000). Questions of fact found by the state court are "presumed to be correct . . . and [receive] deference . . . unless it 'was based on anunreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Hill, 210 F.3d at 485 (quoting 28 U.S.C. § 2254(d)(2)).

Pure questions of fact are governed by § 2254(d)(2). Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A state court's factual findings are entitled to deference on federal habeas corpus review and are presumed...