Thomas v. Davis

ISAAC LAMAR THOMAS, Petitioner, v. LORIE DAVIS,¹ DIRECTOR, TEXAS DEPARTMENTOF CRIMINAL JUSTICE, CORRECTIONALINSTITUTIONS DIVISION, Respondent.

CIVIL ACTION NO. H-15-3764

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

ENTERED: February 9, 2017

February 8, 2017

MEMORANDUM AND RECOMMENDATION GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

Before the Magistrate Judge in this proceeding brought pursuant to 28 U.S.C. § 2254 is Respondent's Motion for Summary Judgment (Document No. 18) against Petitioner's Federal Application for Writ of Habeas Corpus (Document No. 1). Having considered the motion, Petitioner's Traverse in response (Document No. 28), the claims raised by Petitioner in his § 2254 Application and Supplement thereto (Document No. 5), the state court records, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Respondent's Motion for Summary Judgment (Document No. 18) be GRANTED, that Petitioner's Federal Application for Writ of Habeas Corpus (Document No. 1) be DENIED, and that this case be DISMISSED WITH PREJUDICE.

I. Introduction and Procedural History

Isaac Lamar Thomas ("Thomas") is currently incarcerated in Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), as a result of a 2012 aggravated robbery conviction in the 410^th District Court of Montgomery County, Texas, cause no. 10-02-01613-CR, for which he was sentenced to twenty-five (25) years imprisonment. Thomas was charged by indictment with that offense on February 9, 2010, with the Indictment alleging:

Isaac Lamar Thomas, hereinafter styled Defendant, on or about January 05-2010, and before the presentment of this indictment, in the County and State aforesaid, did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Mohammad Mehboob in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to wit: a firearm.

Thomas pled not guilty and proceeded to trial. On June 6, 2012, a jury found Thomas guilty, and he was thereafter sentenced by the court following a punishment hearing on August 3, 2012, to twenty-five years incarceration.

Thomas appealed his conviction. On September 18, 2013, Texas' Ninth Court of Appeals affirmed the conviction in an unpublished opinion. Thomas v. State, No. 09-12-00458-CR. Thomas' petition for discretionary review was then refused by the Texas Court of Criminal Appeals on March 12, 2014. Thomas did not file a petition for writ of certiorari.

On May 29, 2013, prior to the issuance of the appellate decision, Thomas filed a state application for writ of habeas corpus. That application was dismissed on July 31, 2013, because Thomas' direct appeal was still pending. Thomas then filed a second state application for writ of habeas corpus on December 1, 2014, which was denied by the Texas Court of Criminal Appeals on November 18, 2015, on the findings of the state trial court without a hearing. This § 2254 proceeding, filed by Thomas on December 21, 2015, followed.

Respondent has filed a Motion for Summary Judgment (Document No. 18), to which Thomas has filed a Traverse in response (Document No.28). This § 2254 proceeding is ripe for ruling.

II. Factual and Evidentiary Background

The factual and evidentiary background, as set forth by Texas' Ninth Court of Appeals in affirming Thomas' conviction, is as follows:

The record establishes that two men entered the complainant's residence, restrained him, assaulted him, stole items from the home, threatened his life, and then drove away. The complainant testified that during the robbery Thomas told him that "this isn't personal[,]" and that Thomas and the other man wanted to settle a score with the complainant's brother. The complainant's brother testified that Thomas had been to the residence twice before - one time right before the robbery. The brother testified that a drug deal he had with Thomas had "gone bad[.]" The brother named Thomas as a potential subject.

The complainant testified he saw Thomas up close during the aggravated robbery and later identified him in a photographic lineup and again at trial as one of the two men who robbed him. The complainant also testified that Thomas had a gun during the robbery. The complainant identified the gun at trial as the gun that Thomas had used during the robbery, and the gun which Thomas left at the complainant's residence. The complainant testified that the intruders beat him, and that Thomas struck him in the face, handcuffed his hands behind his back, and tied his legs with a belt. Thomas took various items from the residence.

Thomas v. State, No. 09-12-00458-CR at 2-3.

III. Claims

Thomas raises numerous claims challenging his aggravated robbery conviction, alleging:

1. that he is actually innocent of the offense;

2. that the prosecutor engaged in misconduct by: (a) arguing outside of the record during closing argument; (b) mis-stating the evidence during closing argument; (c) expressing a personal belief as to Thomas' guilt during closing argument; (d) commenting on Thomas' failure to testify during closing argument; and (e) bolstering the credibility of the complainant during closing argument;3. that his trial counsel was ineffective for: (a) failing to present evidence of mistaken identity; (b) failing to call Charles Thomas to testify in support of a mistaken identity defense; (c) failing to call Linda Thomas to testify in support of a mistaken identity defense; (d) failing to present expert witness testimony on "cross racial identification" and/or witness misidentification; (e) failing to seek the exclusion of, or move to strike the testimony of, "Hassan," the complainant's brother; (f) failing to object to the jury charge, which did not include an instruction on the consideration of extraneous offenses; (g) failing to object at trial to extraneous offense evidence; (h) failing to file a motion to quash the indictment; (i) failing to present an un-redacted copy of Thomas' video-taped statement; (j) failing to request a jury instruction on the voluntariness of his Thomas' statement; (k) failing to request a hearing on the voluntariness of his statement; (l) failing to object to the prosecution's bolstering of the complainant's credibility; (m) failing to object to the prosecutor's stated personal belief in Thomas' guilt; (n) failing to object to the prosecutor's comments on his failure to testify; (o) failing to object to the prosecutor's misrepresentation of the evidence; and (p) failing to object to the complainant's identification of the weapon used during the offense;

4. that there was insufficient evidence to support his conviction;

5. that the jury charge was defective; and

6. that the indictment was defective.

In the Motion for Summary Judgment, Respondent first argues that Thomas has not exhausted his state law remedies with respect to his claim that counsel was ineffective for failing to object to the complainant's identification of the weapon used during the offense (claim 3(p)), and that that claim is unexhausted and procedurally barred from review. Next, Respondent argues that all of Thomas' prosecutorial misconduct claims (claims 2(a) - 2(e)) are procedurally barred from review because they were not raised by Thomas in his direct appeal, as they should have been, and as was determined by the Texas Court of Criminal Appeals in rejecting Thomas' state application for writ of habeas corpus. As for Thomas' claims of actual innocence and that the indictment was defective (claims 1 and 6), Respondent argues that such claims are not cognizable or redresaable in this § 2254 proceeding. Finally, Respondent maintains that no relief is available on the remainderof Thomas' claims (claims 3(a)-3(o), 4, and 5) because the Texas Court of Criminal Appeals' rejection of those claims was not contrary to and did not involve an unreasonable application of clearly established Federal law as established by the Supreme Court of the United States and was not based on unreasonable determination of the facts in light of the evidence presented in the state court proceeding, 28 U.S.C. § 2254(d).

IV. Standards of Review

A. Exhaustion and related Procedural Bar

Federal habeas corpus petitioners are required to exhaust their available state law remedies. Deters v. Collins, 985 F.2d 789, 795 (5^th Cir. 1993). In order to exhaust state law remedies, Texas prisoners must fairly present their claims to the highest state court, the Texas Court of Criminal Appeals, TEX. CODE CRIM. PROC. ANN. art. 44.45, through a petition for discretionary review and/or a state application for writ of habeas corpus. TEX. R. APP. P. 68; TEX. CODE CRIM. PROC. ANN. art. 11.07, et seq. "'It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.'" Ex Parte Wilder, 274 F.3d 255, 259-260 (5^th Cir. 2001) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)). Rather, the petitioner must have presented the highest state court with the same claim, the same factual basis for the claim, and the same legal theory in order to meet the exhaustion requirement. Id. "[F]leeting reference to the federal constitution," especially when such reference is not accompanied by any federal case law authority, generally does not suffice to "alert and afford a state court the opportunity to address an alleged violation of federal rights," and that "vague references to such expansive concepts as due process and fair trial" in a state court proceeding will not satisfy the exhaustion requirement. Id. at 260.

When unexhausted claims are contained in a § 2254 application, and when such claims, if the petitioner tried to exhaust them in state court, "would be barred by the abuse-of-the-writ doctrine of Article 11.071 of the Texas Code...