Caldwell v. Thaler

• Decision Date: 31 January 2011
• Docket Number: Civil Action No. H–10–0721.
• Citation: 770 F.Supp.2d 849
• Parties: Robert Leslie CALDWELL, Petitioner,v.Rick THALER, Director, Texas Department of Criminal Justice—Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

770 F.Supp.2d 849

Robert Leslie CALDWELL, Petitioner,

v.Rick THALER, Director, Texas Department of Criminal Justice—Correctional Institutions Division, Respondent.

Civil Action No. H–10–0721.

United States District Court, S.D. Texas, Houston Division.

Jan. 31, 2011.

Robert Leslie Caldwell, New Boston, TX, pro se.Elizabeth A. Goettert, Office of the Texas Attorney General, Austin, TX, for Respondent.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

State inmate Robert Leslie Caldwell (TDCJ # 1453470, former TDCJ # 1151575, # 587582) has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge a state court conviction. The respondent has answered with a motion for summary judgment, arguing that Caldwell is not entitled to the relief he seeks [Doc. # 12]. Caldwell has filed a reply [Doc. # 13]. After considering all of the pleadings, the state court records, and the applicable law, the Court grants the respondent's motion and dismisses this case for reasons that follow.

I. BACKGROUND

The record shows that a local grand jury returned an indictment against Caldwell in cause number 45812A, charging him with robbery. In particular, the indictment alleged that Caldwell intentionally causing bodily injury by striking a store employee with his hand during the course of committing a theft of property.¹ The state enhanced that indictment for purposes of punishment with allegations that Caldwell had at least one prior felony conviction for possession of a controlled substance.

At trial, the state presented substantial evidence of Caldwell's guilt. Bonita Shumake testified that she was working as an overnight stocker at a local Wal–Mart store on November 18, 2006, when she heard the emergency exit alarm sound. Shumake then observed Caldwell leaving the store with two flat-screen televisions still in their boxes. Shumake testified that, when she confronted Caldwell, he responded by striking her in the face and neck with his fist. After his altercation with Shumake, Caldwell carried the televisions to a black SUV that was waiting at the loading dock and departed from the premises. The SUV had no license plates.

A store manager (Richard Fontenot) testified that the theft was recorded on surveillance cameras, but acknowledged that the coverage did not include the entire building. It included some, but not all, of the altercation between Caldwell and Shumake. It did not show Caldwell striking Shumake with his fist. A Wal–Mart maintenance worker (Phil Collins) testified, however, that he was on duty when the theft occurred and that he saw the confrontation between Shumake and Caldwell. Collins testified that, during his altercation with Shumake, Caldwell set the televisions down and struck Shumake in the face and head with a “closed hand.” After Caldwell left with the televisions in a black SUV, Collins and other store employees called for police.

Officer Keith Griffith testified that, when he arrived at the store to investigate, he observed that Shumake was crying and “shaken” by her encounter with the thief. Officer Griffith testified that Shumake had red marks on her neck as well as redness and swelling on the right side of her face. An officer took photographs to document Shumake's injuries.

Officer Hugo Diaz testified that, after hearing a radio dispatch regarding the robbery, he located a black Lincoln Navigator SUV with no license plates as he drove north on Highway 6 near the Wal–Mart. Officer Diaz attempted to conduct a traffic stop, but the SUV refused to pull over. With the assistance of other officers, the SUV eventually stopped. Officer Diaz testified that Caldwell exited the passenger side of the SUV and remarked, “yeah, I did it.” Two flat-screen televisions were recovered from the black SUV in which Caldwell had been a passenger.

Caldwell testified in his own defense during the guilt-innocence phase of the trial. Caldwell admitted committing the offense of theft by stealing two flat-screen televisions from the Wal–Mart. However, Caldwell denied striking Shumake or causing any physical harm during the course of the offense. Defense counsel argued that the state failed to prove that a robbery occurred and that Caldwell was guilty, at most, of the lesser offense of theft.

After hearing all of the evidence, a jury in the 268th District Court of Fort Bend County, Texas, found Caldwell guilty as charged of robbery as alleged in the indictment. During the punishment phase of the trial, Caldwell conceded that the enhancement allegation in the indictment was true. The state also introduced evidence showing that Caldwell had several prior convictions, including at least two felonies. After finding that the enhancement allegation was true,² the trial court sentenced Caldwell to serve 17 years' imprisonment.

On direct appeal, Caldwell's appointed attorney filed a brief along with a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (an “ Anders brief”), certifying that the record disclosed no reversible error and that the appeal was without merit. In response to his counsel's motion, Caldwell raised the following issues in a pro se brief: (1) the trial court erred by permitting the prosecutor to impeach him with a prior conviction without first approaching the bench in violation of a pretrial motion in limine; and (2) he was denied effective assistance of counsel at trial and on appeal when his attorney failed to object or raise an issue about this error. After considering the record, the Anders brief filed by counsel, and the issues raised by Caldwell, the court of appeals found that the appeal was frivolous and that there was no reversible error. See Caldwell v. State, No. 01–07–00669–CR, 2009 WL 276736 (Tex.App.-Houston [1st Dist.] Feb. 5, 2009). Caldwell did not appeal further by filing a petition for discretionary review with the Texas Court of Criminal Appeals.

Caldwell challenged his conviction by filing a state habeas corpus application under Article 11.07 of the Texas Code of Criminal Procedure. His initial application was dismissed for lack of jurisdiction because his direct appeal remained pending. See Ex parte Caldwell, No. 58,627–02 (Tex.Crim.App. July 1, 2009).³ After his appeal became final, Caldwell filed another state habeas corpus application, which raised the following claims: (1) the evidence was factually and legally insufficient to support his conviction for robbery; (2) the prosecution engaged in misconduct by eliciting perjured testimony; (3) the trial court abused its discretion by: (a) commenting on the weight of the evidence when it denied his motion for an instructed verdict; (b) allowing the state to inquire about a prior conviction; and (c) instructing the jury on a lesser-included offense; (4) he was denied his right to an impartial jury when the trial court denied challenges for cause against two biased jurors; and (5) he was denied effective assistance of counsel on appeal when his attorney filed an Anders brief. The state responded that most of Caldwell's claims were waived or barred from collateral review and that his ineffective-assistance allegation was without merit. The state habeas corpus court, which also presided over the trial, summarily rejected the application without entering any specific findings or conclusions. The Texas Court of Criminal Appeals denied Caldwell's application without a written order. See Ex parte Caldwell, No. 58,627–03 (Tex.Crim.App. Jan. 6, 2010).

Caldwell, who remains in custody of the Texas Department of Criminal Justice—Correctional Institutions Division (collectively, “TDCJ”), now seeks a writ of habeas corpus to challenge his robbery conviction under 28 U.S.C. § 2254. In his pending petition, Caldwell raises the same claims that he presented on state habeas corpus review. The respondent maintains that Caldwell's claims are either not cognizable or without merit, among other things, and must be dismissed. The parties' contentions are discussed further below under the governing federal habeas corpus standard of review.

II. STANDARD OF REVIEW

The respondent has filed a motion for summary judgment asking this Court to deny relief and dismiss the petition. Motions for summary judgment are typically governed by Rule 56 of the Federal Rules of Civil Procedure. In this instance, the respondent's summary-judgment motion must be determined in compliance with the federal habeas corpus statutes. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.2002); see also Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). Federal habeas corpus proceedings filed after April 24, 1996 are governed by provisions of the Antiterrorism and Effective Death Penalty Act (the “AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214 (1996). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

The AEDPA was enacted, at least in part, to ensure comity, finality, and deference to state court determinations by limiting the scope of collateral review and raising the standard for federal habeas relief. See Robertson v. Cain, 324 F.3d 297, 306 (5th Cir.2003) (citations omitted). As the Supreme Court has explained, the federal habeas corpus statutes amended by the AEDPA set forth a “highly deferential standard for evaluating state-court rulings, ..., which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (internal citation omitted). Specifically, the AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quotation omitted).

To the extent that the petitioner's claims were adjudicated on the merits in state court, the AEDPA standard applies....