Amaya v. Davis

• Decision Date: 28 February 2017
• Docket Number: CIVIL ACTION NO. H-14-2834
• Parties: REYNALDO AMAYA, (TDCJ-CID #1607287) Petitioner, v. LORIE DAVIS, Respondent.
• Court: U.S. District Court — Southern District of Texas

REYNALDO AMAYA, (TDCJ-CID #1607287) Petitioner, v. LORIE DAVIS, Respondent.

CIVIL ACTION NO. H-14-2834

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

ENTERED: March 1, 2017

February 28, 2017

MEMORANDUM AND OPINION

The petitioner, Reynaldo Amaya, challenges his 2001 conviction for aggravated assault. He sues under 28 U.S.C. § 2254, alleging ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and trial court errors. The respondent moved for summary judgment, (Docket Entry No. 41), and filed a copy of the state-court records. (Docket Entries Nos. 14, 15, 19, 39, and 40). Amaya responded. (Docket Entries Nos. 46 & 47).

Based on the pleadings, the motions and briefs, the record, and the applicable law, the court grants the respondent's motion, denies Amaya's motion, and enters final judgment dismissing the case by separate order. The reasons for these rulings are set out below.

I. Procedural Background

Amaya was convicted of aggravated assault in September 2009 and sentenced to an 18-year prison term. (Cause No. 1186977). The First Court of Appeals of Texas affirmed Amaya's conviction on November 8, 2007. Amaya v. State, 01-09-00848-CR, 2011 WL 1529732 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd, not designated for publication). The Texas Court of Criminal Appeals refused his petition for discretionary review on August 24, 2011. Amaya filed an application for state habeas corpus relief on March 12, 2013, which the Texas Court of Criminal Appeals denied, without a hearing or written order, on findings of the trial court, on September 16, 2015. (Docket Entry No. 39-1, p. 1).

In this federal habeas petition, Amaya asserts the following claims:

(1) Trial counsel, Kennitra M. Foote, provided ineffective assistance by:

(a) failing to secure expert witnesses to testify to Amaya's lack of intent;

(b) failing to seek out and present other witnesses favorable to the defense during both phases of trial;

(c) failing to interview State witnesses;

(d) failing to conduct an adequate investigation;

(e) failing to have a firm command of the facts of the case;

(f) failing to sufficiently object to improper direct examination or closing argument during both phases of trial;

(g) failing to object to extraneous offense evidence during the punishment phase of trial; and

(h) committing an accumulation of errors that made her assistance ineffective.

(2) The prosecution violated Amaya's constitutional rights by:

(a) presenting perjured testimony and fabricated evidence;

(b) failing to comply with the court's order granting discovery;

(c) making improper arguments during both phases of trial; and

(d) preventing the victim from speaking to Amaya's investigator.

(3) The trial court erred by:

(a) admitting a crowbar as a demonstrative aid;

(b) admitting a photographic lineup into evidence;

(c) admitting an audio recording of Amaya into evidence;

(d) limiting trial counsel's time for closing argument;

(e) failing to instruct the jury on reasonable doubt when the prosecution introduced evidence of extraneous offenses; and

(f) failing to require notice from the state.

(4) Appellate counsel, Brian W. Wice and Josh Schaffer, provided ineffective assistance by failing to raise the following issues on direct appeal:

(a) improper admission of State's exhibits, photographic lineup, and audio recording of Amaya; and

(b) ineffective assistance of trial counsel.

Each claim and the response is examined in light of the state-court record and the governing law.

II. Factual Background

The state appellate court summarized the evidence at trial, as follows:

Dawn Rowland, complainant, was at the West End Pub with some friends on the night of October 4, 2008. Appellant was also at the bar with Sherrie Carroll, his girlfriend at the time, and Manuel Matala. At a certain point, appellant ordered some drinks for Rowland and one of her friends. Rowland and her friend declined the drinks. Rowland testified that appellant subsequently made repeated crude comments and gestures to her.

Rowland complained to the owner of the bar. The owner told her he would take care of it. She also told Michael Lewis, a friend that she knew from the bar, that appellantwas harassing her. The owner told Lewis he could ask appellant to leave. Lewis approached appellant and told him he had to leave. Appellant became aggressive and a brief fight ensued. Appellant threatened to call for police assistance, but later left.

After the bar closed, Rowland left with Andrea Hunsucker. They planned to drive their cars to another friend's house. As she left, she noticed a car pull up behind her and begin following her. Another person that was at the bar that night and that saw the fight between Lewis and appellant testified that he saw appellant and his girlfriend in a silver or gray BMW follow Rowland's car out of the parking lot.

When she arrived at her destination, Rowland saw a man approach her car and smash in the driver's side window. The man hit her with a crowbar. Rowland escaped outside the passenger's side window and attempted to run away. She fell when the assailant hit her knees. The assailant continued to hit her over 20 times with the crowbar, yelling things like "this is how it feels." At this point, Rowland recognized appellant as the assailant.

Hunsucker witnessed the assault and recognized appellant as well. She was talking on her cell phone to her friend in the house, Colby Van Cleave, and yelled for help. When Van Cleave ran out of the house, he saw a silver BMW speeding away. Van Cleave picked up a cinder block he kept on his property and threw it at the car. The cinder block hit one of the side mirrors on the car. Later, a piece of a car mirror was found on the street where Van Cleave had thrown the cinder block.

One of the investigating officers later located appellant's silver BMW at a repair shop. The car had sustained damage to one of the side mirrors and one of the doors, though the mirror fragments from the damaged side mirror had already been removed. Additionally, blood samples found on the front passenger seat, the interior driver's door, and the hood of Rowland's car matched appellant's DNA.

Appellant took the stand in both the guilt-innocence phase and the punishment phase of the trial. In the guilt-innocence phase, appellant admitted to being at the bar with Carroll and Matala and to ordering drinks for Rowland and her friend. He denied speaking to Rowland or making any lewd gestures at her. Appellant testified that Lewis started the fight and that he got punched and kicked in the head during the fight. Appellant testified that he was told that the police had been called and stayed outside the bar waiting for them. He also testified that he called the Fort Bend County Sheriff's Office even though the offense occurred in Harris County. Because the police did not arrive while he was waiting and because Carroll and others were urging him to leave, appellant finally left.

Appellant testified that Carroll drove them home, that it only took about 10 to 15 minutes to get home, and that he was thinking about how he was ashamed andembarrassed during the ride home. He testified that during the ride home he heard a thud, Carroll asked what the sound was, and he said he didn't care and to go home. Appellant later attributed this unknown sound to the damage to his door and side mirror.

Appellant repeatedly asserted that he never attacked Rowland. He could not explain, however, how blood found at the scene of the crime matched his DNA. During his testimony, the following exchange took place:

Q. When you say you don't have an explanation or an answer to questions like what happened to your door or what happened to Ms. Rowland other than what we know here because of the trial, or how your DNA could have possibly gotten into her car, are you being truthful when you make those statements?

A. Yes, ma'am.

Q. Are you trying to hide behind intoxication or a faulty memory?

A. No, ma'am.

Q. Are you trying to hide behind any injuries you may have sustained that night?

A. No, ma'am.

Q. You're saying that because you don't know the answers to those questions, correct?

A. That's correct.

During the trial, an audio recording was admitted into evidence containing appellant's statement to police about four days after the incident. In that statement, appellant said he was jumped at the bar but insisted that he did not talk to any girl other than his girlfriend. He also said that they drove his girlfriend's Toyota to the bar and back to his place and that his BMW was at home the entire time. He told the officer that they drove straight to his apartment. He admitted that his BMW was in the shop for repairs but said it was because some kids had thrown something at the car around dusk time the previous Saturday. He identified a movie that was playing on a television station when he got home. Finally, he said he showered and went to bed.

Carroll and Matala testified for appellant as well. Their testimony corroborated the testimony of appellant. Matala testified that appellant did not make any crude gestures or comments to Rowland and that Lewis started the fight. Carroll testifiedsimilarly, adding that she drove appellant directly to his home and that appellant never attacked Rowland.

The jury found appellant guilty of aggravated assault. During the punishment phase, appellant again testified, and the following exchange took place:

Q: And what do you do as far as—or do you do any volunteer work or community work with churches or anything like that?

A: Yes, ma'am. Back when I was—I used to fight, kickboxing. I've held some—I fought for a world title in 2000 in Canada, ISKA world title kickboxing. I hold the southwest Texas kickboxing title. I hold the Texas kickboxing title and I hold the U.S. kickboxing title, full contact.

I wanted to pass that along....

The jury assessed punishment at 18 years' confinement.

After the trial, appellant obtained new counsel and filed a motion for new

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