Dorsey v. Rick Thaler

• Decision Date: 07 September 2011
• Docket Number: CIVIL ACTION NO. H-10-1342
• Parties: CHARLES RAY DORSEY, (TDCJ-CID #859151) Petitioner, v. RICK THALER, Respondent.
• Court: U.S. District Court — Southern District of Texas

CHARLES RAY DORSEY, (TDCJ-CID #859151)Petitioner,

v.RICK THALER, Respondent.

CIVIL ACTION NO. H-10-1342

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: September 7, 2011

MEMORANDUM AND OPINION

The petitioner, Charles Ray Dorsey,¹ seeks habeas corpus relief under 28 U.S.C. § 2254.Dorsey challenges his 2001 state felony murder conviction.The respondent filed a motion for summary judgment, (Docket EntryNo. 17), with a copy of the state-court record.Dorsey filed a response.(Docket EntryNos. 21 & 22).Having carefully evaluated the pleadings, the motion and response, the record, and the applicable law, this court grants the respondent's motion and, by separate order, enters final judgment.The reasons are set out below.

I.Background

The indictment charged Charles Ray Dorsey a/k/a Chad Dorsey with "intentionally and knowingly caus[ing] the death of an individual, namely, Pamela Gale Dorsey, by shooting her."(Clerk's Record, Vol. I, p. 13).A jury found Dorsey guilty as charged and sentenced him to life imprisonment.On November 19, 1998, the trial court imposed sentence in accordance with the jury's verdict.(Id. at 3).On September 6, 2002, the Ninth Court of Appeals reversed and remandedfor a new trial.(Id. at 29-49);Dorsey v. State, 24 S.W.3d 921(Tex. App. - Beaumont 2000, no pet.).The mandate issued on November 20, 2000.(Clerk's Record, Vol. I, p. 14).

On February 2, 2001, Dorsey filed a motion to suppress the evidence seized in the search incident to his arrest and in later searches under warrants, as well as his statements.(Id. at 154-172).A hearing on the motion was held on March 8, 2001.(Reporter's Record, Motion to Suppress, pp. 1-267).The trial court granted the motion to suppress in part and denied it in part, suppressing the audio portion of a videotape showing Dorsey's two and one-half year-old son, C.D., with a gun that he could not fire.The videotape was inconsistent with the defense that the child accidentally fired the gun, killing Pamela Dorsey.The judge admitted the visual portion of the videotape, all the items seized in the initial warrantless search pursuant to the arrest and the later searches, and Dorsey's statements.(Clerk's Record, Vol. II, p. 216).

On June 4, 2001, the case was tried a second time.On June 14, after the jury told the courtthey were "hopelessly divided" on the verdict and would "not be able to come to a unanimous descision[sic],"the trial court granted Dorsey's motion for a mistrial.(Clerk's Record, Vol. II, p. 273).On August 8, 2001, Dorsey moved to recuse the trial judge.The motion was denied after a hearing on September 17, 2001.(Clerk's Record, Vol. II, pp. 298-307).

On November 5, 2001, the case was tried a third time.The jury found Dorsey guilty and sentenced him to a 40-year prison term. (Clerk's Record, Vol. II, p. 353, 362).On November 15, 2001, the trial court imposed the sentence and made an affirmative finding on the use of a deadly weapon.(Clerk's Record, Vol. II, pp. 364-366).On August 28, 2003, the Ninth Court of Appeals of Texas modified the judgment to remove the deadly weapon finding and affirmed the conviction.Dorsey v. State, No. 09-02-023-CR, 117 S.W.3d 332(Tex. App. -- Beaumont [9th Dist.]2003, pet. ref'd).

On April 24, 2007, Dorsey filed his first application for a writ of habeas corpus under Article 11.07 of the Code of Criminal Procedure.He asserted as grounds for relief the denial of his right to effective assistance of appellate counsel, in violation of the Fifth and Sixth Amendments.Ex parte Dorsey, Application No. 67,702-01at 8.On September 12, 2007, the Court of Criminal Appeals of Texas granted Dorsey's first application for writ of habeas corpus in an unpublished opinion, allowing for an out-of-time petition for discretionary review.Ex Parte Dorsey, 2007 WL 2650664(Tex. Crim. App.September 12, 2007).The Texas Court of Criminal Appeals refused Dorsey's petition for discretionary review on February 6, 2008.On June 23, 2008, the United States Supreme Court denied Dorsey's petition for a writ of certiorari.

Dorsey filed a second application for state habeas corpus relief on June 18, 2009.The Texas Court of Criminal Appeals denied the application without written order, on the findings of the trial court, without a hearing, on April 7, 2010.Ex parte Dorsey, ApplicationNo. 67,702-02 at cover.

On April 8, 2010, this court received Dorsey's federal petition.He contends that his conviction is void for the following reasons:²

(1) there was no evidence to support his conviction for murder.(Dorsey's claim D1).

(2) his trial counsel was ineffective for:

A. failing to object to:

(1) the video interrogation of C.D., on confrontation grounds (Dorsey's claim D2);

(2) Detective Tidwell's narration of C.D.'s video interview, on hearsay and confrontation grounds (Dorsey's claim D5);

(3) the .22 caliber revolver and holster, on the ground of relevance (Dorsey's claim D19);

(4)the State's closing argument about Dorsey invoking his Miranda right to counsel(Dorsey's claim D21);

(5) leading questions by the State(Dorsey's claim D23);

(6)the State's improper closing argument misstating evidence outside the record (Dorsey's claim D27);

(7)the State's misstatement of evidence during closing arguments that Dorsey's GSR test was substantially higher than the Complainant's (Dorsey's claim D28);

(8) the admission of hearsay evidence that had previously been ruled inadmissible by the Texas Ninth Court of Appeals, on the grounds that it violated collateral estoppel under double jeopardy (Dorsey's claim D31); and

(9) the admission of hearsay evidence that had previously been ruled inadmissible by the Texas Ninth Court of Appeals on the grounds that it violated the law of the case doctrine (Dorsey's claim D32);

B. failing to request a hearing (Dorsey's claims D6 and D17);

C. failing to question witnesses (Dorsey's claims D7 and D18);D. failing to request a mistrial (Dorsey's claim D19);

E. failing to request a limiting instruction (Dorsey's claim D20);

F. failing to strike jurors for cause (Dorsey's claim D24);

G. failing to obtain a defense expert (Dorsey's claim D22); and

H. failing to rebut testimony elicited by the State(Dorsey's claims D25 and D26).

(3) His appellate counsel was ineffective for failing to raise on direct appeal:

A. that the trial court abused its discretion in admitting the video interrogation of C.D., on the ground that it violated Dorsey's right to confrontation and cross-examination (Dorsey's claims D3 and D29); and

B. that the trial counsel was ineffective for failing to timely object to Detective Tidwell's narration of C.D.'s video, on the ground that it was hearsay (Dorsey's claims D4 and D30).

(4)The prosecutor committed misconduct by failing to maintain a consistent position on whether the videotaped interview of C.D. was an interview/interrogation or an experiment/re-enactment(Dorsey's claims D8 and D9).

(5)The trial court erred by:

A. admitting the videotape showing C.D. and a gun into evidence because:

(1) it failed to meet the requirements of an admissible police experiment (Dorsey's claim D10);

(2) it was admitted over the objection of the defense if it was an interview (Dorsey's claim D11);

(3) it did not comply with any family codes (Dorsey's claim D15); and(4) the video was made in violation of a court order (Dorsey's claim D16);

B. allowing out-of-court statements into evidence (Dorsey's claim D13); and

C. admitting hearsay statements (Dorsey's claim D14).

(6) His right to confront witnesses was violated.

(7) His conviction violated double jeopardy.

(Docket Entry No. 1, Federal Petition, pp. 7-39;Docket Entry No. 2, Petitioner's Memorandum, pp. 11-145).

Each ground is analyzed below.

II.The Applicable Legal Standards

Dorsey's petition is reviewed under the federal habeas statutes, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. 28 U.S.C. § 2254;Woods v. Cockrell, 307 F.3d 353, 356(5th Cir.2002);Nobles v. Johnson, 127 F.3d 409, 413(5th Cir.1997), citingLindh v. Murphy, 521 U.S. 320(1997).Subsections 2254(d)(1) and (2) of AEDPA set out the standards of review for questions of fact, questions of law, and mixed questions of fact and law that result in an "adjudication on the merits."An adjudication on the merits "is a term of art that refers to whether a court's disposition of the case is substantive, as opposed to procedural."Miller v. Johnson, 200 F.3d 274, 281(5th Cir.2000).

AEDPA provides in pertinent part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

A state-court determination of questions of law and mixed questions of law and fact is reviewed under 28 U.S.C. § 2254(d)(1) and receives deference unless it "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States."Hill v. Johnson, 210 F.3d 481, 485(5th Cir.2000).A state-court decision is "contrary to"Supreme Court precedent if: (1)the state court's conclusion is "opposite to...