Draper v. Stephens

• Decision Date: 20 March 2014
• Docket Number: CIVIL ACTION NO. H-13-0981
• Parties: REYNALDO DEWAYNE DRAPER, TDCJ-CID NO. 1641883, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

REYNALDO DEWAYNE DRAPER, TDCJ-CID NO. 1641883, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.¹

CIVIL ACTION NO. H-13-0981

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

DATED: MARCH 20, 2014

MEMORANDUM OPINION AND ORDER

Reynaldo Dewayne Draper, an inmate of the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ-CID"), filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1) challenging a criminal conviction in state court. The respondent has filed a Motion for Summary Judgment with Brief in Support (Docket Entry No. 21), which is supported by state court records. After reviewing the pleadings and the records, the court has determined that the motion should be granted.

I. Procedural History

Draper was charged with murdering Jairus Elon White in Fort Bend County, Texas, on August 23, 2008 (Indictment, Docket Entry No. 18-37, p. 18). The Indictment also alleged that Draper had been previously convicted of felony possession of a controlled substance, cocaine. Id. After entering a plea of not guilty, Draper was tried before a jury, which found him guilty as charged in the Indictment (Verdict, Docket Entry No. 18-38, p. 34). After finding that Draper had been previously convicted of a felony offense, the jury sentenced him to 75 years in prison and assessed a $10,000.00 fine. (Docket Entry No. 18-38, Verdict, p. 39; Order of Commitment, p. 4 0; Judgment on Jury Verdict of Guilty, pp. 41-43; State v. Draper, No. 50076-A (240th Dist. Ct., Fort Bend County, Tex., Feb. 9, 2010))

Draper appealed the judgment, which was affirmed by the Court of Appeals for the Fourteenth District of Texas. Draper v. State, 335 S.W.3d 412 (Tex. App. - Houston [14th Dist.] 2011, pet. ref'd). The Texas Court of Criminal Appeals refused Draper's petition for discretionary review (PDR) on June 22, 2011. Draper v. State, No. 0744-11.

On August 29, 2012, Draper filed a state application for a writ of habeas corpus challenging the conviction pursuant to Article 11.07 of the Texas Code of Criminal Procedure (Original Application for a Writ of Habeas Corpus, Docket Entry No. 18-38, pp. 55-73). Upon receiving the application the state districtcourt issued an Order Designating Issues with instructions for Draper's trial counsel and appellate counsel to answer Draper's allegations of ineffective assistance of counsel (Docket Entry No. 18-43, pp. 9-10). After considering the application, the State's answer, the records, and the affidavits submitted by Draper's former counsel, the trial court issued Findings of Fact and Conclusions of Law ("Findings and Conclusions") recommending that the application be denied (Docket Entry No. 18-43, pp. 98105). The habeas proceeding was then forwarded to the Court of Criminal Appeals, which denied the application without a written order on findings of the trial court without a hearing. Ex parte Draper, No. 79,228-01 (Tex. Crim. App. April 17, 2013). Draper filed the instant federal habeas petition for a writ of habeas corpus challenging the murder conviction on March 25, 2013.

II. Draper's Claims and Respondent' s Arguments

Draper has presented the following grounds for relief in his federal habeas petition:

1. The State violated Draper's due process rights by withholding exculpatory evidence (a 911 call revealed during cross-examination) in violation of Brady² (Petition, Docket Entry No. 1, pp. 6-7);

2. The State violated its own pretrial motion in limine by eliciting testimony regarding Draper's alleged gang affiliation (Id. at 6-8.);

3. The trial court erred in admitting Draper's gang affiliation into evidence and in failing toinstruct the jury to disregard the evidence (Id. at 9-10.);

4. The trial court erred in admitting perjured testimony of the State's witness, Kimberly Alexander (Id.);

5. Draper was denied effective assistance of counsel when his trial attorney, Dorian Cotlar (a) failed to object to the State's questioning of Alexander that caused her to change her testimony; (b) failed to request a mistrial based on the State's coercion of contradictory testimony from Alexander; and (c) elicited testimony from a detective that opened the door to violating the State's motion in limine, which had been granted (Id. at 10-11.);

6. Draper was denied effective assistance of counsel when his appellate attorney, Cary M. Faden (a) filed a PDR for Draper after advising Draper that he would have to file a prose PDR and (b) failed to raise issues on direct appeal (Id. at 12-13.); and

7. The trial court erred by (1) refusing to declare a mistrial after the jury indicated that it was hopelessly deadlocked and (2) issuing a coercive Allen³ charge (Id. at 13-15.).

The respondent filed a motion for summary judgment arguing that Draper has failed to meet the burden of proof necessary to qualify for relief in a federal habeas corpus proceeding. Draper filed Petitioner's Objection to Respondent's Motion for Summary Judgment (Docket Entry No. 24).

III. Facts Established at Trial

The Fourteenth Court of Appeals set forth a summary of the evidence in its opinion as follows:

Appellant invited several friends to a birthday party in his honor at a local bar. After the bar closed and the party ended, appellant and his friends stayed behind to talk in the parking lot. The complainant, who was not a part of appellant's group, stood nearby. The complainant made a comment about appellant's friend, who was dancing on a parked car. After a brief conversation between appellant and the complainant, the complainant turned to get into his car. Witnesses testified that appellant pulled out a firearm, shot at the complainant from behind, and fired several more shots at the complainant after he fell to the ground. Appellant fled, and the complainant died at the scene. An autopsy revealed that the complainant sustained nine entrance and two exit gunshot wounds.

Draper v. State, 335 S.W.3d at 413.

IV. Standard of Review

Motions for summary judgment are typically governed by Rule 56 of the Federal Rules of Civil Procedure. Habeas corpus proceedings, however, are governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 117 S. Ct. 2059, 2067 (1997); see also Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). To the extent that the petitioner's claims were "adjudicated on the merits" in state court, the AEDPA standard found at 28 U.S.C. § 2254(d) applies.

Claims presenting pure questions of law and mixed questions of law and fact are governed by 28 U.S.C. § 2254(d) (1), which precludes habeas relief unless a petitioner demonstrates that the state court's decision to deny a claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of theUnited States[.] " 28 U.S.C. § 2254(d)(1); McGowen v. Thaler, 675 F.3d 482, 489 (5th Cir. 2012). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. See Williams v. Taylor, 120 S. Ct. 1495, 1499-1500 (2000). A state court unreasonably applies clearly established precedent if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case. Day v. Quarterman, 566 F.3d 527, 535 (5th Cir. 2009), citing Brown v. Payton, 125 S. Ct. 1432, 1438-39 (2005). Under this standard an unreasonable application is more than merely incorrect or erroneous; rather, the state court's application of clearly established law must be "objectively unreasonable." Williams, 120 S. Ct. 1521.

The Supreme Court has held that "review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). A state court's findings of fact "are 'presumed to be correct' unless the habeas petitioner rebuts the presumption through 'clear and convincing evidence.'" Nelson v. Ouarterman, 472 F.3d 287, 292 (5th Cir. 2006), quoting 28 U.S.C. § 2254(e)(1). This presumption extends not only to express findings of fact, but also to the implicit findings of the state court. See Garcia v. Ouarterman. 454 F.3d 441, 444 (5th Cir. 2006) (citations omitted).Where pure questions of fact are concerned a petitioner is not entitled to relief unless he demonstrates that the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(2); see also Buntion v. Ouarterman, 524 F.3d 664, 670 (5th Cir. 2008).

As this deferential standard reflects, the AEDPA has "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, 122 S. Ct. 1843, 1849 (2002), citing Williams, 120 S. Ct. at 1518. The Supreme Court has underscored the extent of this deferential standard:

[28 U.S.C. § 2254(d)] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining [a writ of] habeas corpus from a federal court, a state prisoner must show that the state court

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