Freeman v. Davis

• Decision Date: 21 September 2016
• Docket Number: CIVIL ACTION NO. H-15-0932
• Parties: MARCUS DESHUNN FREEMAN, (TDCJ-CID #1708920) Petitioner, v. LORIE DAVIS, Respondent.
• Court: U.S. District Court — Southern District of Texas

MARCUS DESHUNN FREEMAN, (TDCJ-CID #1708920) Petitioner, v. LORIE DAVIS, Respondent.

CIVIL ACTION NO. H-15-0932

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

September 21, 2016

MEMORANDUM AND OPINION

Petitioner, Marcus Deshunn Freeman, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging two convictions in the 183rd Judicial District Court of Harris County, Texas. Respondent filed a motion for summary judgment, (Docket Entry No. 16), and copies of the state court record. Freeman, with the assistance of counsel, has filed his response. (Docket Entry No. 21). After consideration of the motion and response, the record, and applicable authorities, the court grants respondent's motion. The reasons for this ruling are stated below.

I. Background

A jury found Freeman guilty of the felony offenses of possession with intent to deliver cocaine and possession with intent to deliver codeine. (Cause Numbers 1238767 and 1238768). Freeman pleaded true to the enhancement paragraphs relating to prior convictions for possession of a controlled substance in Cause Numbers 834756 and 885474. On April 19, 2011, the jury sentenced Freeman to twenty-five years imprisonment in each cause. The First Court of Appeals of Texas affirmed Freeman's convictions on April 30, 2013. The Texas Court of Criminal Appeals refused Freeman's petitions for discretionary review on July 24, 2013. Freeman filed applications for state habeas corpus relief on July 8, 2014, which the Texas Court of Criminal Appeals denied without written order, on findings of the trial court, without a hearing on March 25, 2015. (Docket Entry No. 13-23, Ex parte Freeman, Application No. 82,926-01 at 1; Docket Entry No. 13-27, Ex parte Freeman, Application No. 82,926-02 at 1).

On April 9, 2015, this court received Freeman's federal petition. Freeman contends that his convictions are void for the following reasons:

(1) Trial counsel, Troy S. Locklear, rendered ineffective assistance by:

(a) failing to present evidence to show that Freeman did not live at 5315 Keystone; and

(b) failing to object to the State's improper remarks during its closing argument;

(2) The prosecutor introduced false evidence and made improper remarks during its closing argument;

(3) The trial court erred when it failed to give him extra time to get testimony from a fact witness;

(4) He was denied a fair trial because the trial court refused to sustain his motion to suppress the search warrant;

(5) He is actually innocent;

(6) The cumulative effect of these errors violated his due process rights;

(7) The length of his sentence constitutes cruel and unusual punishment; and

(8) The evidence was legally insufficient to support his convictions.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 16-20).

II. Statement of Facts

The appellate court summarized the facts as follows:

The Houston Police Department received information that narcotics were being trafficked from a single-family residence located at 5315 Keystone Street. After conducting some surveillance of the property, Officer S. Bryant, the lead investigator, sent a confidential informant and another officer, K. Jacobs, to the home to execute a controlled buy. Officer Jacobs, who was posing as the informant's girlfriend, witnessed Freeman sell crack cocaine to the informant from the front doorway of the home. Based on information obtained as a result of the controlled buy, Officer Bryant obtained a "no knock" search and arrest warrant for 5315 Keystone Street.

Officer Bryant and the other members of his team executed the warrant five days after the controlled buy took place. When they arrived at the property, the officers found two men standing in front of the main house and another man inside the main house. During the search, a marked patrol unit that was watching the perimeter of the property alerted them that two more men—one of whom was later identified as Freeman—were exiting a second, smaller, unattached building located at the rear of the property. The officers went to the backyard where they encountered two pit bulls. One of the officers discharged his weapon to protect the officers from the aggressive animals. They then detained Freeman and his companion. Freeman was later arrested and found to be carrying over $800 in cash.

After Freeman was detained, officers conducted a thorough search of both the main house and the small, unattached building. The small, unattached building was a ten-foot-by-ten-foot recording studio, with a seating area and a singing booth. When the officers entered the studio they found two more men inside. They also recovered a loaded .38 caliber Smith & Wesson revolver and a rifle from the recording studio's attic.

When they searched the main house, officers discovered a loaded, chambered semi-automatic Glock pistol with hollow-point bullets on the nightstand in the home's only usable bedroom.⁴ Two baggies of marijuana were lying next to the pistol, in plain view. Officer Bryant testified that all three of the weapons recovered from the property—the revolver, the pistol, and the rifle—were deadly weapons that were capable of causing death or serious bodily injury.

4 The second bedroom in the main house was being used for storage.

Officers also found an opened bottle labeled as promethazine and codeine phosphate syrup in a shoe box on a chair next to the nightstand. A second shoe box that contained eight additional, unopened bottles of what appeared to be the same codeine cough syrup was found in the bedroom closet. The officers also found men's clothes fitting someone Freeman's size in the bedroom, as well as mail addressed to Freeman at that address. In particular, officers found a cable work order for that address that was dated earlier that week and listed Freeman as the customer. Officer Bryant concluded, based upon the clothes and mail, that the bedroom where the codeine and loaded Glock were found belonged to Freeman.

In the kitchen of the main house, officers found a beaker lying on the counter, a scale, and a knife that could be used to manufacture crack cocaine. They also found several baggies in one of the kitchen drawers, each containing what appeared to be a "cookie" of crack cocaine. The crime lab later determined that one of those baggies contained 32.1 grams of crack cocaine.⁵ Officers also found a recent electric bill for the property in the kitchen area that was addressed to Freeman. Inside the black Chevy Impala parked in the driveway, officers also found paperwork indicating that Freeman was doing business as "Full Metal Jacket Records," and bank records for Full Metal Jacket Records listing 5315 Keystone Street as the business's address.

5 The criminalist who tested the contents of the baggie testified that she weighed all of the baggies, but only tested the contents of one because even if all of the other baggies contained crack cocaine, the total amount would not exceed 200 grams, and therefore would not move the offense into the next penalty group.

Freeman's mother testified that she owned the home at 5315 Keystone, but had moved out three years before officers searched the property. She testified that another one of her sons lived in the house with his son and another man. She also testified that Freeman did not live in the house, but he did spend a lot of time in the recording studio he built in the back of the property. According to Freeman's mother, ten people, including herself and Freeman, received mail at the house.

Freeman v. State, Nos. 01-11-00288-CR, 01-11-00289-CR, 2013 WL 1804471, at *1-2 (Tex. App. -- Houston [1st Dist.] 2013, pet. ref'd)(not designated for publication).

III. The AEDPA Standard of Review

Under 28 U.S.C. § 2254(d), a federal court may grant a habeas writ for a defendant convicted under a state judgment only if the state courts' adjudication of the defendant's constitutional claim (1) "'was contrary to' federal law then clearly established in the holdings of" the Supreme Court, (2) "'involved an unreasonable application of'" clearly established Supreme Court precedent, or (3) "'was based on an unreasonable determination of the facts' in light of the record before the state court." Harrington v. Richter, 562 U.S. 86, 100-101 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)); 28 U.S.C. § 2254(d).

The AEDPA "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in [28 U.S.C] §§ 2254(d)(1) and (d)(2)." Id. Under those provisions, "a federal court cannot grant a petition for a writ of habeas corpus unless the state court's adjudication of the merits was 'contrary to, or involved an unreasonable application of, clearly established Federal law.'" Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (quoting 28 U.S.C. § 2254(d)(1)); see also Thaler v. Haynes, 559 U.S. 43, 47 (2010); Bell v. Cone, 535 U.S. 685, 698 (2002); Early v. Packer, 537 U.S. 3, 7-8 (2002); Williams v. Taylor, 529 U.S. 362, 413 (2000). "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." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see also Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004); Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002).

Similarly, federal courts defer to a state court's factual determinations, presuming all factual findings to be correct. See 28 U.S.C. § 2254(e)(1),(2). "The presumption of correctness not only applies to explicit findings of fact, but it also applies to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact." Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001).

IV. The Issues of Exhaustion and Procedural Default

(Grounds 3 & 8)

The scope of federal habeas review is limited by the intertwined doctrines of procedural default and exhaustion. Bledsue v. Johnson, 188 F.3d...