Fletcher v. Stephens

Decision Date17 July 2015
Docket NumberCivil Action No. SA-5-14-CV-00983-XR
CourtU.S. District Court — Western District of Texas
PartiesTERRANCE FLETCHER, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

On this date, the Court considered Petitioner Terrance Fletcher's federal habeas corpus petition pursuant to 28 U.S.C. § 2254 (docket no. 1), Respondent William Stephens' Response and motion to dismiss (docket no. 13), and the Magistrate Judge's Report and Recommendations (docket no. 15). For the reasons set forth below, the Court ADOPTS the Magistrate Judge's Report and Recommendations, GRANTS the motion to dismiss, and DENIES the petition.


Fletcher is an inmate serving a life sentence under the custody of the Texas Department of Criminal Justice (TDCJ) in Beeville, Texas. Docket no. 1 at 2. In 2011, Fletcher was convicted of murder in the 227th Judicial District, Bexar County, Texas. Id. He was found guilty of murdering Rosalinda Vega outside of her son Robert Coronado's home. Docket no. 11, Ex. 2 at 3. That day, Coronado got into an argument with the mother of his children, who was in a relationship with Fletcher at the time. Id. Hearing about it, Fletcher drove to Coronado's home, where the family was gathered on the street. Id. He slowed his vehicle, moved so that hewas driving on the wrong side of the street, and "tossed" a brick out of the vehicle's window, striking Vega. Id. Vega eventually died from her injuries. Docket no. 11, Ex. 2 at 3-4.

A. State Direct Appeal

Fletcher appealed his conviction to the Texas Fourth Court of Appeals, arguing that: (1) the evidence was insufficient to support the jury's verdict; (2) the trial court erred in denying his request to include criminally negligent homicide as a lesser included offense; (3) the trial court abused its discretion by admitting evidence of an extraneous offense; and (4) the trial court abused its discretion in denying his motion for a mistrial after jurors were observed on the phone and in the restroom separated from other jurors. Docket no. 11, Ex. 2 at 1. The Fourth Court of Appeals affirmed Fletcher's conviction on May 2, 2012. Fletcher v. State, No. 04-11-435-CR, 2012 WL 1549816 (Tex. App.—San Antonio May 2, 2012, pet. ref'd). Fletcher then filed a petition for discretionary review to the Texas Court of Criminal Appeals ("CCA") reasserting these four claims. The CCA refused discretionary review on September 12, 2012. Docket no. 1 at 3.

B. State Habeas Petition

Fletcher filed his first state habeas petition on October 18, 2013. Docket no. 12, Ex. 13 at 1. In this petition, Fletcher raised eight claims of ineffective assistance of counsel by his trial counsel, Cornelius N. Cox, for failing to: (1) "move to dismiss the defective indictment because of the improper transference of the mental element"; (2) "move for a judgment of acquittal based on the actual evidence of cause of death"; (3) call a medical expert who could present a defense that the victim's death was "due to medical neglect"; (4) raise a Batson challenge and "move to strike the jury panel and the prosecutions [sic] peremptory challenge concerning a black juror"; (5) present a "misidentification and suggestive photograph lineup defense" and a related juryinstruction over a prosecution witness's failure to identify Fletcher in a photograph lineup; (6) present a defense of "police fabrication"; (7) "move for exploration of the jury to determine whether the jury considered prejudicial, and outside information"; and (8) "present a strong Alibi [sic] defense." Docket no. 12, Ex. 13 at 1-18. Fletcher's first state habeas corpus application was dismissed by the CCA pursuant to Texas Rule of Appellate Procedure (TRAP) 73.1 for failure to adhere to formatting rules on September 24, 2014. See Docket no. 12, Ex. 11 at 1.

Fletcher filed his second habeas petition on October 30, 2014. Docket no. 12, Ex. 14 at 1. Fletcher's second petition raised the same eight grounds as his first petition and added a ninth ground of ineffective assistance of counsel for failing to "retain or consult with an expert pathologist" who could rebut the testimony provided by the Bexar County Medical Examiner's Office. Id. at 25, 51. The CCA denied Fletcher's petition without written order on December 10, 2014. Docket no. 12, Ex. 15 at 1.

C. Proceedings in Federal Court

Fletcher filed his petition for habeas corpus with this Court on November 6, 2014,1 listing ten grounds for relief. Docket no. 1. Four of the claims are for ineffective assistance of trial counsel, and three allege trial court error. Id. Fletcher also advances single claims of prosecutorial misconduct, arrest lacking probable cause, and an inherently suggestive identification in court by a witness. Id. Respondent TDCJ Director of Correctional Institutions Division William Stephens filed his response to Fletcher's petition on February 5, 2015, andmoved to dismiss. Docket no. 13. Stephens argues that five of the issues raised by Fletcher were not included in either his direct state appeal or his subsequent state habeas petition, meaning they are unexhausted. Stephens notes those unexhausted claims would be procedurally barred on the state level if Fletcher were to file them now under the Texas abuse of writ doctrine, which precludes a Texas state court from granting a habeas petition from a prisoner if that prisoner has already had a habeas petition denied by the state courts, absent specifically enumerated exceptions. Id. at 8; TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4. Stephens also argues that the state court's denial of Fletcher's four ineffective assistance of counsel claims presented in the federal petition was reasonable. Docket no. 13 at 12. Last, Stephens argues that relief for Fletcher's claim of error regarding an instruction on the lesser included offense is meritless because the Fifth Circuit has held that the failure to give lesser included offense instructions does not raise a federal constitutional issue in non-capital cases. Id. at 20.

Fletcher responded to Stephens's motion to dismiss on February 19, 2015, arguing that the claims Stephens argues are unexhausted should be treated as exhausted because the CCA "refused to hold an evidentiary hearing" due to an alleged violation of the TRAP that Fletcher claims was retroactively applied to him. Docket no. 14 at 3. Specifically, Fletcher argues that TRAP 72.1's "'more than one ground on one page'" rule only became effective on January 1, 2014, but he had filed his petition on September 4, 2013, so the clerk's office should have "immediately send [sic] the application back to the applicant."2 Id. Because his CCA appeal was "dismissed with an [sic] fraudulent error," Fletcher argues that his "unexhausted" claims should be examined on the merits in federal court because he "gave the [CCA] two chances to address the issues through an evidentiary hearing," which was refused in "blatant[] disregard ofhis constitutional rights." Id. Fletcher thus argues that all of his claims were "properly exhausted." Id. at 4. Alternatively, construing his arguments and objections liberally, he appears to argue that treating some of his claims as unexhausted is unfair because he cannot bring them in state court because they are barred by the abuse of writ doctrine, so he could never properly exhaust them. Id.

Magistrate Judge Mathy entered her Report and Recommendations on March 19, 2015. She recommended that the Court grant Stephens' motion to dismiss and deny Fletcher's petition for writ of habeas corpus and his implicit request that a certificate of appealability be issued. Docket no. 15 at 25.

Stephens objected to the Magistrate Judge's recommendation for "failure to find that Fletcher's claim that the trial court erred in denying his request for a jury instruction on the lesser-included offense fails to state a basis upon which habeas relief may be granted." Docket no. 18 at 1. Fletcher entered his objections to the Magistrate Judge's Report and Recommendations on April 14, 2015. Docket no. 20 at 1. Fletcher objected, arguing (1) that he was prejudiced by a rule change in TRAP, (2) that his counsel had performed deficiently at trial and been sanctioned, and (3) that Fifth Circuit precedent suggested that the throwing of a brick constituted the lesser-included offense of criminally negligent homicide. Id. at 3.

A. Review of a magistrate judge's report and recommendations

Where no party has objected to a magistrate judge's report and recommendations, a court need not conduct a de novo review. See 28 U.S.C. § 636(b)(1). In such cases, the court only reviews the recommendation to determine whether it is clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). Similarly, when a party makes nospecific objection to a portion of a report, a court only reviews that portion for clear error. See id. Additionally, failure to file timely written objections to a magistrate judge's report bars the aggrieved party, except upon grounds of plain error, from attacking the proposed findings and legal conclusions accepted by a district court on appeal. Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000); Douglass v. United Serv. Auto, Ass'n., 79 F.3d 1415, 1428 (5th Cir. 1996).

Where a magistrate judge's report has been objected to, the district court reviews the recommendation de novo pursuant to Federal Rule of Civil Procedure 72. See also 28 U.S.C § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). During a de novo review a court examines the entire record and makes an independent assessment of the law. However, the court should not conduct a de novo review when the objections are frivolous, conclusive, or too general....

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