Brantley v. Stephens

• Decision Date: 27 October 2015
• Docket Number: No. 3:14-cv-2738-P-BN,3:14-cv-2738-P-BN
• Parties: ROSS THOMAS BRANTLEY, III (TDCJ No. 1851307), Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

ROSS THOMAS BRANTLEY, III (TDCJ No. 1851307), Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

No. 3:14-cv-2738-P-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

October 27, 2015

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner Ross Thomas Brantley, III, a Texas inmate proceeding pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained below, the application should be denied.

Background

In February 2013, a Dallas County jury convicted Petitioner of assault involving family violence and, after also finding that Petitioner used a deadly weapon - his hands - during the assault, assessed punishment of six years' imprisonment. See State v. Brantley, No. F-1300014-V (292nd Jud. Dist. Ct., Dallas Cnty., Tex.). The Dallas Court of Appeals affirmed the trial court's judgment as modified. See Brantley v. State, No. 05-13-00225-CR, 2014 WL 545514 (Tex. App. - Dallas Feb. 10, 2014). And a petition for discretionary review was denied. See Brantley v. State, PD-0209-14 (Tex. Crim. App. July 25, 2014).

Petitioner filed a state habeas application concerning this conviction while his direct appeal was pending, and it was dismissed for that reason. See Ex parte Brantley, WR-77,234-04 (Tex. Crim. App. Dec. 11, 2013); see also Dkt. No. 22-20. In that application, Petitioner challenged the deadly weapon finding and raised the right to self-defense as his second ground. See Dkt. No. 22-20 at 13-14.

He dated his second state habeas application concerning this conviction May 24, 2015 and raised therein only claims of ineffective assistance of appellate counsel. See Dkt. No. 22-23 at 4-17. The state habeas trial court issued findings and conclusions and recommended that the writ be denied on July 16, 2014. See id. at 38-52. And the Texas Court of Criminal Appeals denied Petitioner's application without a written order on the findings of the trial court made without a live hearing. See Ex parte Brantley, WR-77,234-05 (Tex. Crim. App. Sept. 24, 2014).

In his Section 2254 application, filed in this Court on July 29, 2014, Petitioner only raises claims that his trial counsel rendered constitutionally ineffective assistance. See Dkt. No. 1. Respondent has answered the Section 2254 petition, asserting that the claims made therein are unexhausted and procedurally barred. See Dkt. No. 18. And, in addition to making numerous other filings, Petitioner has replied, twice. See Dkt. Nos. 19 & 30.

Legal Standards

A petitioner must fully exhaust state remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A). This entails submitting the factual and legal basis of any claim to the highest available state court for review in a procedurally correctmanner. See Satterwhite v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989). In Texas, a prisoner must present each claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for state post-conviction relief. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986). As the United States Court of Appeals for the Fifth Circuit recently explained,

[t]he exhaustion doctrine demands more than allusions in state court to facts or legal issues that might be comprehended within a later federal habeas petition. The exhaustion doctrine is based on comity between state and federal courts, respect for the integrity of state court procedures, and "a desire to protect the state courts' role in the enforcement of federal law." Castille v. Peoples, 489 U.S. 346, 349 (1989) (internal quotation marks omitted) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)). To satisfy these important purposes, a petitioner must "fairly present[]" his legal claim to the highest state court in a procedurally proper manner. Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004). The state courts must be apprised of the constitutional foundation of the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). Finally, "'[i]t 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.'" Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam)). Consequently, "'where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement.'" Id. (quoting Vela v. Estelle, 708 F.2d 954, 958 n.5 (5th Cir. 1983)).

Nickleson v. Stephens, ___ F.3d ___, No. 13-41313, 2015 WL 6159751, at *3 (5th Cir. Oct. 20, 2015).

Measured against this standard, submitting to the highest state court claims that counsel on appeal rendered constitutionally ineffective assistance will not exhaust claims that trial counsel was also constitutionally ineffective. Cf. Trahan v. Cooper, No. 6:10-cv-1535, 2011 WL 1376317, at *7 (W.D. La. Mar. 9, 2011), rec. adopted, 2011 WL1398753 (W.D. La. Apr. 12, 2011) ("Here, it is clear that petitioner initially raised a claim of ineffective assistance of trial counsel, and, when that claim was rejected by the district court, he raised an entirely different claim of ineffective assistance of post-conviction counsel in the appeals court and in the Supreme Court. In other words, petitioner's ineffective assistance of trial counsel claim was never litigated in the Louisiana Supreme Court and therefore petitioner has not exhausted state court remedies with respect to that claim.").

Unexhausted claims should be found procedurally barred if "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also Neville v. Dretke, 423 F.3d 474, 479 (5th Cir. 2005) (holding unexhausted claims ineligible for stay when state court would find them procedurally barred).

Texas law precludes successive habeas claims except in narrow circumstances. See TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5. This is a codification of the judicially created Texas abuse-of-the-writ doctrine. See Barrientes v. Johnson, 221 F.3d 741, 759 n.10 (5th Cir. 2000). Under this state law, a habeas petitioner is procedurally barred from returning to the Texas courts to exhaust his claims unless the petitioner presents a factual or legal basis for a claim that was previously unavailable or shows that, but for a violation of the United States Constitution, no rational juror would have found for the State. See id. at 758 n.9. Therefore, unexhausted claims that could not make the showing required by this state law would be considered procedurally barred fromreview on the merits in this Court unless an exception is shown. See Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001). An exception to this bar allows federal habeas review if a petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

Analysis

Petitioner's ineffective-assistance-of-trial-counsel ("IATC") claims are unexhausted and - likely - procedurally barred. While Petitioner has neither shown that his claims would be allowed in a subsequent habeas proceeding in state court under Texas law nor asserted the "fundamental miscarriage of justice" exception to procedural bar, the limited exception to procedural bar created in Martinez v. Ryan, 132 S. Ct. 1309 (2012), found applicable to Texas cases in Trevino v. Thaler, 133 S. Ct. 1911 (2013), arguably could apply if Petitioner's claims against his trial counsel were substantial. But, for the reasons discussed below, the Martinez/Trevino exception to procedural bar does not apply here because Petitioner has not shown that his underlying IATC claims are substantial.

"In Martinez, the Supreme Court held,

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

132 S. Ct. at 1320. In 2013, the Supreme Court confirmed that Martinez applied to Texas prisoners who technically had the ability to bring their IAC claim on direct appeal of their conviction, but for all intents and purposes had to bring it in their first habeas petition.

Crutsinger v. Stephens, 576 F. App'x 422, 430 (5th Cir. 2014) (per curiam) (citing Trevino, 133 S. Ct. at 1921); see also Adams v. Stephens, No. 4:14-cv-395-O, 2015 WL 5459646, at *4 (N.D. Tex. Sept. 17, 2015) ("Trevino recognizes that no counsel or ineffective counsel at the first state collateral review proceeding can constitute 'cause' to excuse a habeas petitioner's procedural default of a claim. Trevino merely established an exception to the procedural default rule...." (citation omitted)).

The narrow Martinez/Trevino exception to procedural bar only applies if a petitioner can show that the IATC claim presented is "substantial - that is, that it has 'some merit.'" Cutsinger, 576 F. App'x at 430 (quoting Martinez, 132 S. Ct. at 1318); see id. (noting that, "if a petitioner's IAC claim is not substantial enough to earn a [certificate of appealability], it is also not substantial enough to form the basis for excusing the procedural default" (citing Martinez, 132 S. Ct. at 1318-19 (in turn citing Miller-El v. Cockrell, 537 U.S. 322 (2003)))); see also Speer v. Stephens, 781 F.3d 784, 785 & n.4 (5th Cir. 2015) (noting the "limited nature" and "narrowness" of the exception (citing Marti...