Butler v. Dir., TDCJ-CID

• Decision Date: 20 March 2020
• Docket Number: CIVIL ACTION NO. 9:16-CV-210
• Parties: QUINCY DESHAN BUTLER v. DIRECTOR, TDCJ-CID
• Court: U.S. District Court — Eastern District of Texas

QUINCY DESHAN BUTLER v. DIRECTOR, TDCJ-CID

CIVIL ACTION NO. 9:16-CV-210

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

March 20, 2020

MEMORANDUM OPINION AND ORDER

Petitioner, Quincy Deshan Butler, an inmate confined at the Eastham Unit with the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Procedural & Factual Background

Petitioner was indicted on August 18, 2011, in Brazos County for two counts of aggravated assault with a deadly weapon. One of the counts involved family violence. The indictments were related to events that occurred on May 28, 2011. Petitioner also had charges pending in Waller County for possession of a controlled substance, possession of a firearm by a felon, and evading arrest that stemmed from the events on May 28, 2011.

Petitioner's pre-trial counsel indicated to the State that petitioner wished to testify at the August 2011 grand jury proceedings involving the charges for aggravated assault. The State sent petitioner an invitation through his attorney to appear at the grand jury proceedings. The invitation letter contained "target warnings" taken from TEX. CODE. CRIM. PR. ANN. art. 20.17 (West 2005). Petitioner voluntarily appeared before the grand jury, and he was informed that the grand jury was investigating the two charges of aggravated assault. Petitioner was again given the target warnings orally and in writing, and he waived his rights provided in the target warnings and testified before the grand jury about the events that occurred on May 28, 2011.

On January 16, 2012, petitioner was indicted by a grand jury in Brazos County for deadly conduct discharge of a firearm and unlawful possession of a firearm by a felon. State of Texas v. Butler, No. 12-00472-CRF-272, Clerk's Record, Indictment, pg. 9 (docket entry no. 41-1). The State elected to try the cases from the January 2012 indictment first. For the purpose of charging petitioner as a habitual offender, the indictment also alleged petitioner's two prior convictions for possessing a controlled substance. Id. Petitioner was ultimately tried for only the deadly conduct charge and a jury found him guilty on October 31, 2013. Clerk's Record, Judgment of Conviction by Jury, pg. 171 (docket entry no. 41-3). On the following day, the jury sentenced petitioner to a 62 year term of imprisonment. Id.

Petitioner filed a Notice of Appeal. On January 8, 2015, the Tenth Court of Appeals affirmed the conviction. Memorandum Opinion, Butler v. State, No. 10-13-00430-CR, pgs. 1-28 (docket entry no. 41-7). The Texas Court of Criminal Appeals refused petitioner's petition for discretionary review. Butler v. State, No. PD-0129-15 (pet. ref's Apr. 1, 2015). On October 5, 2015, the United States Supreme Court denied petitioner's petition for certiorari. Butler v. Texas, No. 15-5381, 136 S.Ct. 235 (2015).

Petitioner filed a state application for writ of habeas corpus on September 28, 2016 (docket entry no. 44-12). The writ was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court without a hearing on March 8, 2017. Action Taken, In re Butler, No. WR-70,583-06 (docket entry no. 44-6).

Petitioner filed his federal petition for writ of habeas corpus on December 21, 2016 (docket entry no. 1). After clarifying petitioner's claims, respondent was ordered to Show Cause on April 5, 2017 (docket entry no. 20). The Response was filed on July 21, 2017 (docket entry no. 40). Petitioner amended his federal application for writ of habeas corpus and filed a second state application for writ of habeas corpus on February 27, 2018, while this federal action was pending. See State Writ (docket entry no. 112-1). Respondent was ordered to show cause as to petitioner's amended claims on May 3, 2019. Respondent argues the claims are exhausted, procedurally barred or lack merit. This Memorandum Opinion and Order considers the Responses and petitioner's Reply. See Director Response (docket entry nos. 40 & 111); see also Petitioner'sReply (docket entry nos. 48, 77, 91 & 118).

Relevant Facts

The Tenth Court of Appeals reviewed petitioner's appeal of his state application for habeas relief for his companion charge of possessing a firearm¹ which arose out of the same incident as the instant offense. The Tenth Court of Appeals summarized the relevant facts as follows:

[On May 28, 2011,] [Butler] allegedly shot through a closed door and hit his girlfriend, Pinkie Hardy, while at Hardy's residence in Bryan, Texas. According to the probable-cause statement made by Travis Hines to Sergeant Blake Bell, after the shooting, [Butler] fled the scene. When he left the scene, [Butler] was seen with a pistol in his possession. [Butler] fled in a vehicle to Waller County, Texas. After evading Waller County Sheriff's deputies, [Butler] crashed his vehicle on Highway 290 in Waller County. A semi-automatic pistol and cocaine were discovered in [Butler's] vehicle. Additionally, a large amount of United States currency was found on [Butler's] person. [Butler] was subsequently arrested.

Ex parte Butler, No. 10-13-00362-CR, 2014 WL 2466564, & 1 (Tex. App. - Waco May 29, 2014).

Points of Error

The Court has taken considerable time to review all the pleadings in this matter, the state court records, and the responses filed by the Respondent and Petitioner in order to compile a list of petitioner's claims.² Giving the most liberal construction to petitioner's claims, the points of error are as follows:

1. Trial counsel failed to object on the grounds that the jury charge constituted 1) a constructive amendment of indictment, 2) a material and fatal variance, 3) reduced the State's burden of proof, 4) right to unanimous verdict, 5)violated petitioner's rights under the United States Constitution to majority verdict, 6) denied fair notice, and 7) violated petitioner's right against double jeopardy.³ (first state writ)

2. The State subjected petitioner to double jeopardy by trying him for a greater and lesser-included offense at the same time. Trial counsel failed to object. Petitioner suffered egregious harm based on the fact that the jury charge was erroneous in allowing some of the juror's toconvict for deadly conduct. This violated petitioner's state and federal constitutional rights to jury unanimity, majority verdict, and against double jeopardy.⁴ (first state writ)

3. Trial counsel failed to re-object to the murder statement made by the State after first objection had been sustained, despite the trial admonishment to the first objection, they reiterated the statement that appellant "came to the community sells poison then commit's [sic] murder while he's here." Trial counsel failed to re-object and move for a mistrial.⁵ (first state writ)

4. Appellate counsel raised the court denial of three separate motions for mistrial. However, appellate counsel failed to argue the cumulative effect of the three instances of prosecutorial misconduct denied petitioner a fair trial.⁶ (first state writ)

5. Trial counsel moved to quash the indictment on grounds that the deadly conduct allegation contained in the indictment failed to state all the elements of the offense of deadly conduct by failing to state a culpable mental state. However, trial counsel's motion was incorrectly stated, because the indictment instead alleged the wrong culpable mental state.⁷ (first state writ)

6. Appellate counsel failed to raise the double jeopardy claim: On September 18, 2013 the second mistrial was caused by the State questioning its own witness with questions the prosecutor knew, or should have know, would elicit harmful and prejudicial responses. The prosecutor forced the mistrial by "goading" the defense to move for a mistrial. Trial counsel objected to proceeding to the October 29, 2013 trial on the grounds of double jeopardy. Appellant counsel failed to raise this reversible error.⁸ (first state writ)

7. Out of Time Appeal: Appellate counsel failed to comport her argument to the trial lawyers objection and waived petitioner's rightto appeal by failing to comply with the law.⁹ (first state writ)

8. Appellate counsel failed to cite any relevant authority in support of insufficiency of the evidence claim based on the State's failure to elect between alternative manner and means of committing deadly conduct.¹⁰ (first state writ)

9. Trial counsel failed to call petitioner's Waller County attorney at a pre-trial hearing (Writ of Habeas Corpus on Double Jeopardy Collateral Estoppel) as a witness to testify to the fact that the firearm was dismissed as part of a plea agreement and that it should not be able to be used in any proceedings afterward.¹¹ (first state writ)

10. Pre-trial counsel (Dennis Richards) gave incorrect sentencing advice before he advised petitioner to attend the grand jury. Counsel failed to investigate the law and facts of the case. If counsel Dennis Richards would not have given petitioner the advise to admit to a crime petitioner would not have been indicted for deadly conduct.¹² (first state writ/amended)

11. Trial counsel failed to request for instruction on the lesser included offense instruction when the criteria was satisfied. Counsel failed to afford petitioner his right to allocution at sentencing.¹³ (first state writ/amended)

12. Counsel failed to offer petitioner a plea offer on deadly conduct.¹⁴ (first state writ/amended)

13. Counsel failed to call a material witness that was willing and available to testify (Roy Ellis).¹⁵

14. Trial counsel failed to investigate prior conviction in cause no. 1090275 and validity of the constitutionality of the priors that were used to enhance petitioner's deadly conduct which was a 2 to 10 offense.¹⁶ (second state writ/abuse of the writ)

15. Trial counsel failed to object to the indictment for lack of jurisdiction based on the grounds that petitioner was arrested May 28, 2011 and peti

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