Acker v. Director, CIVIL ACTION NO. 4:06-cv-469

Decision Date14 June 2016
Docket NumberCIVIL ACTION NO. 4:06-cv-469
CourtU.S. District Court — Eastern District of Texas

Petitioner Daniel Clate Acker, an inmate confined on death row in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his capital murder conviction and death sentence imposed by the 8th District Court of Hopkins County, Texas, in Cause Number 0016026, in a case styled The State of Texas vs. Acker. For reasons set forth below, the Court finds that the petition is procedurally barred in part and without merit otherwise, and that it will be denied.


Petitioner was convicted and sentenced to death for the murder of his girlfriend, Marquette George, in the course of a kidnaping. The offense took place on March 12, 2000. Based on the jury's answers to the special issues set forth in the Texas Code of Criminal Procedure, Article 37.071, the trial court sentenced Petitioner to death on March 30, 2001. The Texas Court of Criminal Appeals affirmed the conviction. Acker v. State, No. AP-74109, 2003 WL 22855434 (Tex. Crim. App. Nov. 26, 2003). Petitioner did not file a petition for a writ of certiorari.

While the direct appeal was pending, Petitioner, by counsel, filed an application for a writ of habeas corpus in state court on July 18, 2003. Separately, and several months later, Petitioner filed a pro se petition for habeas relief on December 31, 2003. The trial court conducted an evidentiary hearing on his ineffective assistance of counsel claims. On June 16, 2006, the trial court issued findings of fact and conclusions of law. On November 15, 2006, the Texas Court of Criminal Appeals denied the counseled application with the following statement:

Applicant presents forty-six allegations in his application in which he challenges the validity of his conviction and resulting sentence. An evidentiary hearing was held and the trial judge entered findings of fact and conclusions of law. The trial court recommended that relief be denied.
This Court has reviewed the record with respect to the allegations made by applicant. We adopt the trial judge's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, the relief sought is denied.

Ex parte Acker, No. WR-56841-01 & 56841-02, 2006 WL 3308712, at *1 (Tex. Crim. App. Nov. 15, 2006). In addition,

This Court has also reviewed a pro se application for writ of habeas corpus. Because this application was filed after the deadline provided for an initial application for habeas corpus, we find it to be a subsequent application. See Art. 11.071, § 4(a). We further find that the application fails to meet one of the exceptions provided for in Section 5 of Article 11.071 and, thus, dismiss this subsequent application as an abuse of the writ.


Petitioner filed his original federal petition for writ of habeas corpus (#17) on November 14, 2007. He moved to stay and hold proceedings in abeyance to allow him to exhaust claims in the state court, which the court granted. On September 10, 2008, the Texas Court of Criminal Appeals reviewed this third state habeas application and ruled, in its entirety,

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5.
Applicant was convicted of capital murder on March 30, 2001. We affirmed the conviction and sentence on direct appeal. Acker v. State, No. AP-74,109 (Tex. Crim. App. November 26, 2003). On July 18, 2003, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. When this Court received the record it included pro se claims raised by applicant. We denied relief on the initial application and determined the pro se claims were untimely and did not meet the requirements forconsideration of subsequent claims under Article 11.071, Section 5, and dismissed them. Ex parte Acker, No. WR-56,841-01 and WR-56, 841-03 (Tex. Crim. App. November 15, 2006). Applicant now brings fifteen more claims. We have reviewed these claims and find that they do not meet the requirements of Article 11.071, Section 5 for consideration of subsequent claims. This application is dismissed as an abuse of the writ.

Ex parte Acker, No. WR-56841-04, 2008 WL 4151807, at *1 (Tex. Crim. App. Sept. 10, 2008). The present, post-exhaustion, petition (#30) (the operative "Petition") was filed on November 10, 2008. Petitioner presented the following grounds for relief, with numerous sub-claims, in his 282-page petition:

1. Petitioner is actually innocent of capital murder;
2. The trial court was biased against Petitioner and committed many errors which prevented him from presenting his case for innocence and deprived him of due process and a fair trial;
3. The trial court erred in denying the defense motion for a change of venue and deprived Petitioner of his right to a fair trial;
4. Trial counsel rendered ineffective assistance of counsel during the pre-trial portion of the proceedings;
5. Trial counsel rendered ineffective assistance of counsel at the guilt/innocence portion of the trial;
6. Trial counsel rendered ineffective assistance of counsel at the penalty phase of the trial;
7. Appellate counsel rendered ineffective assistance of counsel;
8. Petitioner was denied meaningful access to the courts and due process of law in state post-conviction proceedings by the appointment of ineffective state post-conviction counsel;
9. The trial court erred in denying the defense confidential experts under Ake v. Oklahoma1;10. Petitioner was denied a fair trial and due process of law by the persistent misconduct of the prosecutor;
11. Lethal injection - as it is currently administered in Texas - produces unnecessary pain, torture, and lingering death, and violates the Eighth Amendment;
12. The second special issue is unconstitutional because it omits a burden of proof and makes impossible any meaningful appellate review of the jury's determination;
13. The death penalty, at least as presently administered in Texas, is cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution;
14. Petitioner's death sentence violates international law, which is binding on this court, as well as the Eighth Amendment; and
15. The cumulative effect of the errors at Petitioner's trial denied him of due process under the Fourteenth Amendment.

The Director filed an answer (#43) ("Answer") on August 21, 2009. Petitioner filed a reply (#48) ("Reply") on February 19, 2010. This Court2 conducted an Evidentiary Hearing on the issue of the first claim, actual innocence, on June 16, 2011. (See #76 (minute entry) and #78 (hearing transcript).) On July 20, 2011, both the Director and Petitioner filed their respective post-hearing briefs (#82 and #83).


The Texas Court of Criminal Appeals discussed the factual background of the case as follows:

The victim, Marquette ("Markie") George, was appellant's girlfriend, but they had a stormy relationship. On the evening of March 11, 2000, they were with friends and arelative at the Bustin'3 Loose nightclub. From a distance, Mary Peugh observed the two of them arguing. After the argument, appellant walked back to Peugh's table and remarked, "I'm going to kill that bitch." Pointing to the victim, appellant later told Timothy Mason to tell Markie that appellant was going to kill her. Dorcus Vititow,4 appellant's older sister, testified that appellant acted very jealous and was eventually kicked out of the nightclub for his behavior. Appellant returned several times, inquiring about Markie's whereabouts, and at least one of those times Vititow told him to stay out of the club. Vititow and appellant left the premises together when the club closed at 1:00 in the morning.
Earlier that night, Vititow had taken a knife away from appellant, and appellant later asked for the knife to be returned. FN4 When appellant asked for the knife to be returned, Vititow claimed (falsely) that she did not have it. FN5 Holding up an axe, appellant responded, "I don't need that knife. If I find her with another man, they will pay." Later that morning, appellant was still looking for the victim. He believed that she had spent the night with another man, and he said that, when he found them, he would beat them and make an example out of them, because no one was going to make a fool out of him.
FN4. During direct examination by the State, Vititow was reluctant to testify about the details of the incident, but the State treated her as a hostile witness and elicited those details with leading questions and the help of earlier statements.
FN5. When asked by the State why she refused to give back the knife, Vititow claimed that she refused to do so because the knife actually belonged to Markie.
At around 9:15 a.m., appellant appeared at the victim's parents' house and asked about the victim's whereabouts. The victim's mother, Lila Seawright, told appellant that she had not seen her. Appellant told Seawright that he did not know what he was going to do without Markie. He further told her that, if Markie had stayed away by herself that night, then everything was fine, but "if I find out she was with anybody, I'm going to kill 'em." Shocked, Seawright replied that "there's not anybody worth killing and going to thepen for." Shrugging his shoulders, appellant responded, "Pen life ain't nothing. Ain't nothing to it."
Thomas Smiddy testified that the victim lived in a mobile home within a mobile home park. Smiddy was one of her neighbors. Between 10:45 and 11:00 a.m., the victim arrived at her home with a man who was not appellant. This man dropped her off and left. Appellant came out of the home to meet her, and the two went inside. Twenty to thirty minutes later, Markie ran out of the home and over

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