Ducksworth v. Davis

• Decision Date: 18 January 2018
• Docket Number: CIVIL ACTION NO. 3:16-CV-318
• Parties: DONNIE EARL DUCKSWORTH, TDCJ # 01872103, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

DONNIE EARL DUCKSWORTH, TDCJ # 01872103, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

CIVIL ACTION NO. 3:16-CV-318

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

January 18, 2018

MEMORANDUM OPINION AND ORDER FOR CONDITIONAL GRANT OF HABEAS CORPUS

Table of Contents

I. BACKGROUND .................................................................................................................... 2

A. Procedural Background ....................................................................................................... 2

B. Factual Background ............................................................................................................ 3

II. STANDARDS OF REVIEW .................................................................................................. 5

A. Habeas Corpus .................................................................................................................... 5

B. Summary Judgment ............................................................................................................ 7

C. Ineffective Assistance of Counsel ....................................................................................... 8

III. ANALYSIS ....................................................................................................................... 10

A. Ineffective Assistance of Counsel: Jury Instructions ....................................................... 10

1. Jury Instruction on Robbery ....................................................................................... 10

2. Deficient Performance ................................................................................................ 16

3. Prejudice ..................................................................................................................... 21

4. 2254 Review ............................................................................................................... 24

a. Deficient Performance ............................................................................................ 25

b. Prejudice ................................................................................................................. 27

B. Ineffective Assistance of Counsel: Failure to Strike Juror .............................................. 31

IV. CONCLUSION ................................................................................................................. 34

Petitioner Donnie Earl Ducksworth filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) raising two claims of ineffective assistance of counsel. Respondent filed a Motion for Summary Judgment (Dkt. 8), to which Ducksworth has responded (Dkt. 9). Respondent also filed the relevant state court records (Dkt. 7). After reviewing all of the parties' filings, the record, and the applicable law, the Court concludes that the writ of habeas corpus should be conditionally granted on one claim and that summary judgment should be granted to Respondent on the second claim.

I. BACKGROUND

A. Procedural Background

On December 13, 2012, Ducksworth was charged by indictment with two counts of aggravated robbery. He was tried by jury before Judge W. Edwin Denman in the 412th District Court of Brazoria County, Texas, Cause No. 69305. Faye Gordon, appointed counsel, represented Ducksworth at trial. On June 26, 2013, the jury found Ducksworth guilty on both counts. Ducksworth pleaded true to the habitual offender enhancement allegations, and on June 27, 2013, the jury sentenced him to sixty years imprisonment on each count, to be served concurrently.¹

The First Court of Appeals of Texas affirmed Ducksworth's conviction on June 10, 2014, in an unpublished opinion. Ducksworth v. State, 01-13-00616-CR, 2014 WL 2582895 (Tex. App.—Hou. [1st Dist.] 2014, no pet.). Ducksworth did not seek discretionary review.

On November 10, 2014, Ducksworth filed a petition for state habeas relief. The trial court held an evidentiary hearing on January 23, 2015 (SHCR-02, at 178-269 ("Evidentiary Hearing")). On April 2, 2015, the court entered Findings of Fact and Conclusions of Law (id. at 292-307 ("FFCL")). The Texas Court of Criminal Appeals denied relief without written order on January 20, 2016 (Dkt. 7-17).

Ducksworth timely filed his habeas corpus petition in this Court on June 3, 2016.

B. Factual Background

On direct appeal, the First Court of Appeals summarized the relevant facts as follows:

Ducksworth and his wife were arrested after two construction workers notified police that the two had stolen metal pipe from their construction site. The two men, Jose and Ruben Vera, who are brothers, testified that Ducksworth and his wife entered a road-side construction zone in Pearland and began loading metal pipe onto Ducksworth's truck. The Veras testified that they approached Ducksworth and told him that the pipe was not construction debris and that he could not take it. In response, Ducksworth pulled a knife partially out of his pocket, threatened them, and left the construction site with the pipe. The Veras called the police, and Ducksworth and his wife were stopped within a few minutes. During the stop, the police found pipe and a knife in the bed of Ducksworth's truck. Both were arrested and charged with aggravated robbery.

At trial, Ducksworth's wife, Connie Peters, testified that she had understood that a third construction worker had given Ducksworth permission to take the pipe before the Veras intervened. She also testified about the knife that the police found in the bed of the truck. She stated thatthey kept the knife in the cab of the truck and used it to operate the truck's broken ignition. Peters testified that the knife remained in the cab of the truck throughout the confrontation with the Veras, meaning that Ducksworth could not have used it to threaten the Veras as they contended. She explained that the knife was in the bed of the truck when the police arrived only because they used it to help secure the pipe for transport after taking it from the construction site. Ducksworth did not testify.

The jury was asked whether Ducksworth committed aggravated robbery. The jury was not instructed on any lesser-included offenses. The jury found Ducksworth guilty of aggravated robbery and, taking into account two enhancement paragraphs, sentenced him to 60 years' imprisonment.

Ducksworth, 2014 WL 2582895, at *1.

Faye Gordon, appointed counsel for Ducksworth, did not request a jury instruction on robbery or any other lesser included offense of aggravated robbery. She initially requested, but later withdrew, an instruction on theft (FFCL, at 296-97 & 304-05, Findings No. 29, 30, 33 & 66). When the case was submitted to the jury, the jury's only options for verdict were acquittal or conviction for aggravated robbery.

After his conviction and sentence were affirmed on direct appeal, Ducksworth filed a state habeas petition claiming that Gordon had rendered constitutionally ineffective assistance of counsel at his trial when she failed to request a robbery instruction. He also claimed that she was ineffective because she used two of her peremptory strikes on jurors already challenged for cause, thus wasting the strikes, and allowed a biased juror to be seated without challenging him for cause or peremptorily. Gordon filed an affidavit and testified at the state habeas court's evidentiary hearing.

The state habeas court entered Findings of Fact and Conclusions of Law denying habeas relief. See FFCL, at 306, Conclusion No. 1 ("Trial counsel was not ineffective infailing to use a peremptory strike to remove Venireman 10, Jason Mahin"); id. Conclusion No. 3 ("Trial counsel was not ineffective for failing to request a lesser included jury charge for Robbery").² The Court of Criminal Appeals denied relief without written order.

II. STANDARDS OF REVIEW

A. Habeas Corpus

Ducksworth's federal habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320 (1997). The intent of the AEDPA is to avoid federal habeas "retrials" and "ensure that state-court convictions are given effect to the extent possible under [the] law." Bell v. Cone, 535 U.S. 685, 693 (2002).

The provisions of Section 2254(d) create a highly deferential standard, thereby demanding that state court decisions be given the benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). Review of a state court decision is limited to the record that was before the state court that adjudicated the claim on its merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A federal court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication:

(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.

28 U.S.C. § 2254(d). See Harrington v. Richter, 562 U.S. 86, 100 (2011); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012). Questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1); questions of fact are reviewed under § 2254(d)(2). Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).

A state court decision is contrary to clearly established law if the decision "applies a rule that contradicts the governing law set forth" by the Supreme Court or if the state court "confronts a set of facts that are materially indistinguishable" from the Supreme Court precedent and decides the case differently. Early v. Packard, 537 U.S. 3, 8 (2002). A state court unreasonably applies federal law if the court "identifies the correct...