Gafford v. Dir.,Tdcj-Cid

• Decision Date: 22 June 2022
• Docket Number: 3:20-cv-00039-K (BT)
• Parties: MILTON GAFFORD, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.
• Court: U.S. District Court — Northern District of Texas

MILTON GAFFORD, Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.

No. 3:20-cv-00039-K (BT)

United States District Court, N.D. Texas, Dallas Division

June 22, 2022

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

Milton Gafford, a former Texas prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.^[1] The District Court referred the petition to the United States magistrate judge for findings and a recommendation, pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons the District Court should DENY Gafford's petition.

I. Background

Gafford used his car to assault of his girlfriend, Lillie Spencer, on a highway in Texas. He was later charged by indictment with aggravated assault with a deadly weapon, and his charge was enhanced with a paragraph alleging a prior conviction for aggravated assault with a deadly weapon. Gafford waived his right to a jury trial, and the 283rd District Court of Dallas County, Texas, found him guilty as charged in the indictment. See The State of Texas v. Milton Gafford, Case No. F-1371212-T. On July 14, 2014, the Court sentenced him to ten years' imprisonment.

The Fifth Court of Appeals of Texas affirmed the trial court's judgment, see Gafford v. State, No. 05-14-00917-CR, 2015 WL 4641693, at *3 (Tex. App-Dallas 2015, pet. ref'd), and the Texas Court of Criminal Appeals (CCA) refused his petition for discretionary review (PDR), See Gafford v. State, No. PD-0600-18 (Tex. Crim. App. 2018). Thereafter, Gafford filed a state application for writ of habeas corpus, which the CCA denied without a written order.

Gafford then filed this § 2254 petition (ECF No. 3), in which he argues:

(1) He was denied effective assistance of counsel when his appellate attorney failed to argue in his PDR that Gafford's conviction was only supported by testimony the complainant “felt” fear, as opposed to actually being in danger.

(2) His trial attorney provided ineffective assistance of counsel when he:

a. failed to object to the jury charge based on the fact it omitted the requirement that the jury find there was actual danger; and

b. failed to investigate the State's expert witness and find that the expert was not qualified to make a conclusion in court.

(3) The trial court abused its discretion when it:

a. found him guilty without sufficient evidence because it “applied feelings over actual reality”; and

b. failed to correct the false interpretation of the truth when it allowed the fingerprint expert to testify without submitting the fingerprint to the FBI.

The Director filed a response arguing that Gafford's petition should be denied because he failed to establish that the state court's rejection of his claims was objectively unreasonable. Gafford did not file a reply, and the time for doing so has passed. Thus, his claims are fully-briefed and ripe for determination.

II. Legal Standards and Analysis

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, provides:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 a State court proceeding.

28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id.

1. Gafford did not have a right to counsel for his PDR.

Gafford initially argues that he was denied effective assistance of counsel when his appellate attorney erred in his PDR. Pet. 6 (ECF No. 3). Specifically, he contends that his appellate attorney failed to argue that his conviction was only supported by testimony the complainant “felt” fear, but she was “never actually in danger,” “not objectively”. Id.

The right to effective assistance of counsel for a criminal defendant extends only to a first appeal of right. Clark v. Johnson, 227 F.3d 273, 283 (5th Cir. 2000) (citing Evitts v. Lucey, 469 U.S. 387, 392 (1985)). A defendant does not have the right to counsel when pursuing a discretionary appeal. See Ross v. Moffitt, 417 U.S. 600, 614-15 (1974); see also Clark, 227 F.3d at 283 (“[T]he Supreme Court has not extended the right of counsel to discretionary review.”). The Supreme Court has held that it was constitutional under due process to not provide counsel on discretionary appeal. Ross, 417 U.S. at 610.

Gafford did not have a right to the assistance of an attorney when pursuing his PDR to the CCA. See Clark, 227 F.3d at 283. For this reason, he is not entitled to federal habeas relief on this ineffective assistance of counsel claim because he was not denied a federal constitutional right. See Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993 (“To obtain review of a state court judgment under § 2254, a prisoner must assert a violation of a federal constitutional right.”). Therefore, the Court should deny Gafford's claim of ineffective assistance of appellate counsel.

2. Gafford has failed to demonstrate that his trial attorney provided ineffective assistance of counsel.

Next, Gafford argues that his trial attorney erred by failing to object to the jury instructions, which did not state that the jury “must find actual danger, a predicate finding needing more than feelings.” Pet. 6 (ECF No. 3). He further argues that his trial attorney erred when he failed to investigate the fingerprint witness. Id. at 6, 26.

To succeed on a claim of ineffective assistance of counsel, a petitioner must show “counsel's representation fell below an objective standard of reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel rendered assistance. Strickland v. Washington, 466 U.S. 668, 688 (1984). The standard requires the reviewing court to give great deference to counsel's performance, strongly presuming counsel exercised reasonable professional judgment. Id. at 689. The right to counsel does not require errorless counsel; instead, a criminal defendant is entitled to reasonably effective assistance. Murray v. Maggio, 736 F.2d 279, 281-82 (5th Cir. 1984); Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. 1981).

Additionally, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The petitioner must “affirmatively prove,” not just allege, prejudice. Id. at 693. If he fails to prove prejudice, the court need not address the question of counsel's performance. Id. at 697. Merely presenting “conclusory allegations” of deficient performance or prejudice is insufficient to meet the Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).

“[T]he test for federal habeas purposes is not whether [an inmate] made that showing [required by Strickland]. Instead, the test is whether the state court's decision-that [the inmate] did not make the Strickland-showing-was contrary to, or an unreasonable application of, the standards, provided by the clearly established federal law (Strickland), for succeeding on his [ineffective assistance of counsel] claim.” Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003); Charles v. Thaler, 629 F.3d 494, 501 (5th Cir. 2011) (citing Schaetzle, 343 F.3d at 444); see also 28 U.S.C. § 2254(d)(1). When the state court has adjudicated the claims on the merits, a federal court must review a petitioner's claims under the “doubly deferential” standards of both Strickland and Section 2254(d). See Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citing Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). “The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

a. Jury Instructions

Gafford argues that his trial attorney provided ineffective assistance of counsel when he failed to object to the jury charge omitting the requirement for actual danger. Pet. 6, 28 (ECF No. 3).

The failure to make a frivolous objection does not cause counsel's performance to fall below an objective level of reasonableness. See Green v. Johnson, 160 F.3d 1029 1037 (5th Cir.1998) (citing Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995)). Under Strickland, a court's review of counsel's performance should be “highly deferential.” 466 U.S. at 689. This is so because “[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence[.]” Id. And “[g]iven the...