Cummings v. Dir., TDCJ-CID

• Docket Number: Civil Action 4:20cv531
• Decision Date: 27 March 2023
• Parties: GARY JAMES CUMMINGS, #02147545 v. DIRECTOR, TDCJ-CID
• Court: U.S. District Court — Eastern District of Texas

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GARY JAMES CUMMINGS, #02147545 v. DIRECTOR, TDCJ-CID

Civil Action No. 4:20cv531

United States District Court, E.D. Texas, Sherman Division

March 27, 2023

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE

Pro Se Petitioner Gary James Cummings, an inmate confined in the Texas prison system, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred to United States Magistrate Judge Kimberly C. Priest Johnson for findings of fact, conclusions of law, and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636, and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

Petitioner is challenging his Grayson County conviction, Cause No 067700. On July 12, 2017, a jury found Petitioner guilty of evading arrest or detention, enhanced by two prior convictions, and that he used a deadly weapon. (Dkt. #15-32, pp. 21-25). The trial court found the enhancements true and sentenced Petitioner to thirty years' confinement. (Dkt. #15-32, p. 21).

Petitioner appealed his conviction, which was affirmed on July 31, 2018. Cummings v. State, No. 05-17-00852-CR, 2018 WL 3629105 (Tex. App. July 31, 2018) (Dkt. #15-3). Petitioner filed a petition for discretionary review (“PDR”) (Dkt. #15-12), which the Texas Court of Criminal Appeals (“TCCA”) refused on December 19, 2018. Case Number PD-0935-18; see also Cummings, No. 05-17-00852-CR, 2018 WL 3629105.

Petitioner filed an application for state habeas corpus relief on July 8, 2019. (Dkt. #15-32, pp. 26-52; Dkt. #15-33, pp. 1-4). On October 21, 2019, the state habeas court adopted the “memorandum, findings of fact, and conclusion of law as its own” and, based on those findings of fact and conclusions of law, ordered that Petitioner's application be denied. (Dkt. #25-33, pp. 4662). On February 19, 2020, the TCCA denied the application without a written order on the findings of the state habeas court without a hearing and on the court's independent review of the record. (Dkt. #15-28).

Petitioner filed the original petition on July 7, 2020 (Dkt. #1), and an amended petition (Dkt. #8) on August 13, 2020.1In the amended petition, Petitioner asserts the following claims for relief:

1. There was insufficient evidence presented to support the deadly weapon finding.

2. The trial court erred by allowing the State to admit evidence of previous convictions that were over ten years old.

(Dkt. #8, pp. 5-7). The Director filed a response, arguing that Petitioner's claims are without merit. (Dkt. #14). Petitioner filed a reply. (Dkt. #16).

II. FACTUAL BACKGROUND

The Fifth District Court of Appeals set out the facts as follows:

On November 24, 2016, at approximately 1:45 a.m., Officer Dennis Marshall observed a vehicle rapidly approach an intersection and turn so quickly that he could hear the tires squeal. When Marshall observed the same vehicle fail to stop at a stop sign, he activated his emergency lights and attempted to stop the vehicle. However, the vehicle did not stop. Instead, the driver, later identified as Cummings, “disregarded stopping at” another stop sign and proceeded to drive in a “very rapid manner.” After making a few turns, the vehicle failed to yield at a caution light^[1]that permitted drivers in the opposite direction to have the right of way. Marshall observed that a vehicle, traveling in the opposite direction, “was able to pull over a little bit and slow down” avoiding any possibility of a collision.

[FN1] The record also refers to the caution light as “blinking red lights.”

Marshall continued to follow the vehicle. Then, while the vehicle was still in motion, Cummings crawled out the front driver's-side window and began running away from Marshall's patrol car. After Cummings left the vehicle, Marshall saw that the vehicle “had gone up on the curb,” but did not strike another vehicle. Still driving his patrol car, Marshall continued to follow Cummings who was on foot. Cummings ran to a residence and attempted to enter it. Marshall observed Cummings grab the door knob and put his right shoulder to the door, trying to force it open. At this point, Marshall parked his patrol car and began to chase Cummings on foot, shouting out numerous, clear commands to Cummings to stop and lay on the ground. Cummings continued to run and tried to enter another house. Then, Marshall attempted “to remove [Cummings] from the porch of [the second] residence,” but Cummings grabbed onto the handrail and would not let go. Marshall heard Cummings say something to the effect that Grayson County was trying to kill him. Once Marshall “was able to free [Cummings] from the handrail and get him down into the [front] yard” of the residence, they began to wrestle. Eventually, Marshall used his taser, but it was ineffective. Two additional officers arrived to help. They both heard Cummings yelling, “Don't kill me!” After wrestling for a short period of time, the three officers succeeded in handcuffing Cummings.

Cummings was indicted for the offense of evading arrest or detention while using a deadly weapon. The indictment alleged two prior convictions2 for the purpose of enhancing his punishment. Cummings asserted the affirmative defense of necessity, based on his claim that he was suffering from “medical paranoia.”3 He testified on his own behalf at trial. The jury found Cummings guilty and that he used a deadly weapon. The trial court found the enhancements true and assessed his punishment at thirty years of imprisonment.

[FN2] The two prior convictions alleged in the indictment were for the offenses of: (1) evading arrest or detention with a motor vehicle; and (2) receiving, possessing, or concealing stolen property.

[FN3] It was Cummings's theory at trial that he evaded arrest or detention because some prescription medication he was taking caused him to become paranoid and believe the police were trying to kill him. It was the State's theory that, although Cummings was paranoid, the cause of his paranoia was methamphetamine use and the defense of “necessity” was inappropriate.

Cummings, No. 05-17-00852-CR, 2018 WL 3629105, at **1-2 (Dkt. #15-3, pp. 2-3).

III. STANDARD FOR FEDERAL HABEAS CORPUS RELIEF

The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1354, 1367 (5th Cir. 1993); Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996); Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005). In the course of reviewing state proceedings, a federal court does not sit as a super state appellate court. Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).

The prospect of federal courts granting habeas corpus relief to state prisoners has been further limited by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The new provisions of § 2254(d) provide that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) was contrary to federal law then clearly established in the holdings of the Supreme Court; (2) involved an unreasonable application of clearly established Supreme Court precedent; or (3) was based on an unreasonable determination of the facts in light of the record before the state court. See Harrington v. Richter, 562 U.S. 86, 97-98 (2011).

The statutory provision requires federal courts to be deferential to habeas corpus decisions on the merits by state courts. Renico v. Lett, 559 U.S. 766, 773 (2010); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002). Furthermore, a state court's factual findings are entitled to deference and are presumed correct unless the petitioner rebuts those findings with clear and convincing evidence. Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010); Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006); Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001); see also Moore, 313 F.3d at 881 (the statutory provision requires federal courts to be deferential to habeas corpus decisions on the merits by state courts). This deference extends not only to express findings of fact, but also to any implicit findings of the state court. Garcia, 454 F.3d at 444-45 (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005)). Where, as here, “the state habeas court and trial court are one in the same,” the presumption of correctness afforded the state habeas court's factual determinations is “especially strong.” Mays v. Stephens, 757 F.3d 211, 214 (5th Cir. 2014) (citations omitted).

A decision by a state court is “contrary to” the Supreme Court's clearly established law if it “applies a rule that contradicts the law set forth in” the Supreme Court's cases. Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams v. Taylor, 529 U.S 362, 405-06 (2000)). A federal court's review of a decision based on the “unreasonable application” test should only review the “state court's ‘decision' and not the written opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). “Under § 2254(d)(1)'s ‘unreasonable application' clause, then, a federal habeas corpus court may not issue the writ simply because that court concludes in its independent judgment...