Auvenshine v. Davis

• Decision Date: 03 May 2018
• Docket Number: No. 4:17-CV-294-Y,4:17-CV-294-Y
• Parties: DEREK KYLE AUVENSHINE, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

DEREK KYLE AUVENSHINE, Petitioner, v. LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division, Respondent.

No. 4:17-CV-294-Y

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

May 3, 2018

OPINION AND ORDER

Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Derek Kyle Auvenshine, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

I. Factual and Procedural History

On May 29, 2015, in the 415th District Court, Parker County, Texas, Case Nos. CR14-0087, CR14-0088, CR14-0089, and CR15-0236, a jury found Petitioner guilty on two counts of aggravated assault of a peace officer with a deadly weapon, one count of unlawful possession of a firearm by a felon, and one count of evading arrest or detention with a vehicle. Subsequently, Petitioner pleaded true to sentence-enhancement allegations in each indictment, and the jury assessed his punishment at forty-five years' imprisonment for each aggravated assault, twenty-seven years' imprisonment for unlawful possession of a firearm, and thirty-five years' imprisonment for evading arrest. (Clerk's R. 127, doc. 13-2; Clerk's R. 111, doc. 13-19; Clerk's R. 111, doc. 14-7; Clerk's R. 102, doc. 14-11.) Petitioner appealed his convictions, but the Seventh District Court of Appeals of Texas affirmed the trial court's judgments. (Mem. Op. 11, doc. 13-17.) He did not seek further direct review but did file four post-conviction state habeas-corpus applications challenging his convictions, which were denied by the Texas Court of Criminal Appeals without written order. (Action Taken, docs. 14-15, 14-17, 14-19 & 14-21.) This federal petition for habeas relief followed.

The state appellate court summarized the facts of the case as follows:

Acting on a tip from the Fort Worth Police Department regarding the whereabouts of Adam Crooks, the White Settlement Police Department conducted surveillance on the house at which he was supposed to be located and confirmed the presence of two men and a green Jeep Grand Cherokee at that location. Many of the White Settlement police officers were familiar with Crooks, who was wanted that day in January 2014 for parole violation. The two men got in the Jeep and left the residence, passing officer William "Bill" Ross located in a nearby parking lot. Ross announced by radio that the driver of the Jeep matched the description given of Crooks: short, dark hair and a goatee. As was planned, Ross attempted a traffic stop. As was feared, the Jeep fled from Ross, embarking on what would become high-speed pursuit covering two counties and involving several White Settlement police units.

Having reached speeds of approximately 120 miles per hour, the Jeep exited the freeway onto a farm-to-market road, having left Tarrant County and entered into Parker County. The Jeep tried to make a right-hand turn too fast, nearly flipped over, and spun around, such that the Jeep was then facing Ross's vehicle. At that point, Ross, who had remained the lead unit in the pursuit, came upon the Jeep, now stalled as the driver apparently attempted to reorient the vehicle. With the Jeep now facing Ross's vehicle, Ross drove toward the Jeep's driver side. As Ross's vehicle and the Jeep met, the driver of the Jeep pointed a gun out the window toward Ross. Ross maneuvered his vehicle so as to provide him cover from expected gunfire, got his rifle, exited the vehicle, and began firing toward the Jeep as it began to pull away from the scene.

Following shortly behind Ross was Corporal Joshua Dacus, who saw the gun being pointed at Ross and who, it appears, collided with the Jeep and then approached its passenger side. At that point, Dacus saw [Petitioner] reach across the cabin and point the gun at him. Dacus was also able to see that Crooks was the passenger. The driver was able to maneuver the Jeep away from the gunfire and other arriving police units and continue flight for a short while. The Jeep eventually veered off the road, hit an embankment, flipped rear over front, and landed on its passenger side. The driver, who, like Crooks, also had short, dark hair and a goatee and who was later identified as [Petitioner], crawled out of the vehicle and took off over a hill. Ross, who had gotten back into his car after his first encounter with the Jeep and arrived at the scene of the crash after other officers, again exited his vehicle and fired his rifle, hitting [Petitioner] and effectively ending the chase. Medical care was summoned for [Petitioner]. The passenger, Crooks, was arrested without further incident. A search of the Jeep found a variety of incriminating items, including a firearm.

(Mem. Op. 2-3, doc. 13-17.)

II. Issues

Petitioner claims in four grounds that he received ineffective assistance of counsel at trial and on appeal (grounds one andthree); that the state engaged in prosecutorial misconduct (ground two); and that the trial court failed to conduct impartial court proceedings (ground four). (Pet. 6-7, doc. 5.)

III. RULE 5 STATEMENT

Respondent believes that Petitioner has sufficiently exhausted his state-court remedies as to his claims and that the petition is neither time-barred nor subject to the successive-petition bar. (Resp't's Answer 6, doc. 12.)

IV. LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF

A § 2254 habeas petition is governed by the heightened standard of review provided for in the Anti-Terrorism and Effective Death Penalty Act (AEDPA). See 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 established by the United States Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. See 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet but "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Richter, 562 U.S. at 102.

Additionally, the statute requires that federal courts givegreat 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. This presumption of correctness applies to both express and implied findings of fact. Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001). Further, when the Texas Court of Criminal Appeals denies relief on a state habeas-corpus application without written order, typically it is an adjudication on the merits, which is likewise entitled to this presumption. Singleton v. Johnson, 178 F.3d 381, 384 (5thj Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court may infer fact findings consistent with the state court's disposition and assume that the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied. Townsend v. Sain, 372 U.S. 293, 314 (1963); Schartzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez, 274 F.3d at 948 n.11; Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997). A 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).

Petitioner raised his claims in his state habeas applications,and, based on the record, the habeas court entered express findings that there were no disputed issues of fact; that the claims were "not proper" for habeas relief; and that the claims were "without relief." (WR-86,769-01 Writ Rec'd 203, doc. 14-16.) The court therefore concluded that relief should be denied. In turn, the Texas Court of Criminal Appeals denied the applications without written order. Thus, to the extent more particularized findings were not made by the state court as to each claim, this Court will infer fact findings consistent with the state courts' disposition and, absent any evidence that incorrect standards were applied, assume that the state courts applied correct standards of federal law as determined by the United States Supreme Court.

V. Discussion

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). 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 to demonstrate ineffective assistance. Id. at 687, 697. In applyingthis 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 United States Supreme Court set out in Richter 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 St

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