Ernest D. Newman v. Stephens
| Decision Date | 31 March 2016 |
| Docket Number | CIVIL ACTION NO. 6:15-0048 |
| Parties | ERNEST D. NEWMAN, TDCJ # 1563921, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
State inmate Ernest D. Newman, who proceeds pro se, brings this action for habeas corpus relief from a state court conviction. Petition [Doc. # 1]. Respondent has answered with a Motion for Summary Judgment [Doc. # 16] ("Motion"), arguing that the petition must be denied. Respondent also has submitted the state court records relevant to this action. See State Court Record [Doc. # 6] ("Record"). Petitioner has filed a brief [Doc. # 19] ("Response") responding to Respondent's summary judgment motion. After considering the parties' pleadings, the evidence of record, and the applicable law, the Court grants Respondent's summary judgment motion, denies Newman's petition, and dismisses this case.1
On October 22, 2013, after trial to a jury, Newman was convicted of felony driving while intoxicated ("DWI") in the 24th Judicial District Court of Victoria County, Texas. At trial, a motorist testified that, on or about November 4, 2012, she observed an erratic driver on the highway and called 911 to report the driver, who was later identified as Newman. Officer Randy Williams of the Victoria County Sheriff's Department responded to the call. Officer Williams observed Newman driving erratically and saw him collide into a mailbox and fence. Williams testified at trial that, at the time of the incident, Newman had red, bloodshot eyes, appeared to have urinated on himself, smelled of alcohol, and stammered in response to Williams' questions. Newman advised Williams that his insurance card was in the glove compartment and, when Williams opened the compartment, he found a nearly empty bottle of gin. See generally Record [Doc. # 6-11] (reporter's record of trial in chief). Newman told Williams that he had drunk "a lot" of gin. Id. at 46.2 Video from Williams' patrol car was admitted into evidence at trial. See id. [Doc. # 6-13] (exhibits).
Newman was convicted by a jury of felony DWI and sentenced to 40 years imprisonment in the Texas Department of Criminal Justice ("TDCJ"). The trial court records reflect that his DWI offense was enhanced to a third-degree felony based on two prior convictions for DWI, one from 1979 and one from 1980. Newman stipulated to the two prior convictions. Id. [Doc. # 6-1], at 20. In addition, Newman's sentence was enhanced because of two additional prior convictions, one for felony DWI in 1984 and a second for aggravated robbery in 1990. See id., at 6-7.
Newman filed a direct appeal with the 13th Court of Appeals in Corpus Christi. The court affirmed his conviction on June 26, 2014. Id. [Doc. # 6-5]. Newman did not petition the Texas Court of Criminal Appeals or the United States Supreme Court for discretionary review.
Newman was represented by Brent Dornburg at trial and sentencing and by Elliott H. Costas on direct appeal. He proceeds pro se on habeas corpus review.
On May 15, 2014, Newman filed a state habeas corpus petition in the 24th Judicial District Court of Victoria County. See id. [Doc. # 6-25] (WR-14,514-06). The writ was dismissed on August 6, 2014 because Newman's conviction was not final at the time his application was filed. See id. Doc. # 6-21. Newman then filed a federal habeas petition and, on March 10, 2015, Judge Lynn Hughes of the Southern District of Texas dismissed the petition because he had failed to exhaust his state court remedies. See Order of Dismissal, Newman v. Stephens, No. 6-15-CV-003, dated Mar. 10, 2015 ("Newman still has time to file a habeas petition with the Texas Court of Criminal Appeals").
On March 22, 2015, Newman again filed a state habeas corpus petition in the 24th Judicial District Court of Victoria County. See Record [Doc. # 6-28] (WR-14,514-07). On May 20, 2015, the Texas Court of Criminal Appeals denied the petition without written order. See id. [Doc. # 6-26] ("Denied without written order on findings of trial court without hearing.")
Newman filed the instant federal habeas petition on June 23, 2015. He brings eight claims for habeas relief, all of which were presented to the state habeas court. Newman complains that his prior convictions were improperly used against him, in violation of the prohibition against double jeopardy, his right to due process, and his right to an impartial jury. He further alleges that he was denied a public trial because the sheriff restricted entrance to the courtroom; that he was denied the opportunity to cross-examine State witnesses; that he was denied compulsory process for obtaining witnesses in his favor; that his trial attorney rendered ineffective assistance of counsel because, among other things, he did not adequately seek discovery, subpoena witnesses, preserve evidence and test it for fingerprints and DNA, or object to an unauthenticated video from Newman's arrest; and that his appellate attorney rendered ineffective assistance because he "did nothing to support" the brief he filed. See Petition [Doc. # 1].3
Newman's Petition attaches several affidavits that were filed in the 2015 state habeas proceedings. First, Teresa Easley, an Assistant District Attorney for Victoria County and the lead prosecutor of Newman, averred on April 15, 2015, that the courtroom was never closed to public during Newman's trial, and that Newman's trial counsel cross-examined both of the State's witnesses. She further stated that prosecutors had no agreement with Newman's defense counsel to forego cross-examination of witnesses. Easley Affidavit [Doc. # 1-5], at 14. Second, Brent Dornburg, trial counsel for Newman, submitted an affidavit dated April 2, 2016. Dornburg refuted Newman's statement that he had rendered ineffective assistance, averring that he had filed all appropriate pre-trial motions; that he made efforts to obtain the gin bottle and Newman's truck to investigate Newman's statements but that his efforts were unsuccessful; and that the video from the incident, which Dornburg had "no reason to believe had been modified, other than [Newman's] claim, plainly showed [Newman] operating, wrecking, and getting out of his vehicle," in addition to "the large Gin bottle, almost empty, being removed from the truck." Dornburg Affidavit [Doc. # 1-5], at 18-19. On April 10, 2015, Dornburg provided a supplemental affidavit, stating that Newman's stipulations to his prior convictions were completely voluntary, that Dornburg never agreed with the prosecutors or anyone to forgo cross-examination of witnesses during Newman's trial, and that Newman had never indicated that additional eyewitnesses to the incident existed. Dornburg Supplemental Affidavit [Doc. # 1-5], at 15-16.
Respondent's summary judgment motion seeks dismissal of all of Newman's claims.
Generally, motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. However, the respondent's motion for summary judgment must be analyzed in light of federal habeas corpus statutes. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds, Tennard v. Dretke, 542 U.S. 274 (2004). All federal habeas corpus proceedings filed after April 24, 1996 are governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
For claims containing both legal and factual questions, a federal court may not issue a writ of habeas corpus unless the adjudication in state court resulted in a holding that "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). See Harrington v. Richter, 562 U.S. 86, 100 (2011). A state court's decision is contrary to clearly established federal law if it reaches a legal conclusion that directly conflicts with a prior holding of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003); Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006). A state court unreasonably applies clearly established federal law if it correctly identifies the governing legal principle but applies that principle in an objectively unreasonable manner. Brown v. Payton, 544 U.S. 133, 141 (2005); Nelson, 472 F.3d at 292.
Review under § 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). All of the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption through clear and convincing evidence. Nelson, 472 F.3d at 292 (citing 28 U.S.C. § 2254(e)(1); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000)). Additionally, "[a]ll credibility choices and conflicting inferences are to be resolved in favor of the verdict." Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005) (citing United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999)). When a dispute is purely factual, a petitioner is not entitled to relief unless he proves 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.'" Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008) (quoting 28 U.S.C. § 2254(d)(2)). "'The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.'" Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
A central goal of the AEDPA is to limit the "federal habeas court's role in reviewing state prisoner applications...
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