Hazlip v. Davis, CIVIL ACTION NO. H-16-0607

Decision Date27 September 2017
Docket NumberCIVIL ACTION NO. H-16-0607
PartiesRODNEY KEITH HAZLIP, TDCJ #1794439, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
MEMORANDUM AND ORDER

Rodney Keith Hazlip is serving a 40-year prison sentence in the Texas Department of Criminal Justice - Correctional Institutions Division (TDCJ) imposed after his conviction for felony driving while intoxicated. (Montgomery County, Texas, Cause Number 10-04-04149-CR). Hazlip has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 and a brief in support, seeking relief from that conviction and sentence. (Docket Entry Nos. 1, 9). The respondent has moved for summary judgment, arguing that Hazlip is not entitled to relief because two of the claims are procedurally barred and the remaining claims lack merit. (Docket Entry No. 21). Hazlip has filed a reply. (Docket Entry No. 24).

Based on the pleadings, the motion and reply, the state-court records, and the applicable law, the court grants the respondent's motion, denies Hazlip's petition, and enters final judgment by separate order. The reasons for these rulings are set out below.

I. Background and Procedural History
A. Hazlip's State Court Proceedings

A Montgomery County grand jury indicted Hazlip in Cause Number 10-04-04149-CR, charging him with his third DWI. This is a felony under Texas Penal Code § 49.04.1 The indictment alleged that on April 19, 2010, Hazlip operated a motor vehicle in a public place while intoxicated, and that he had two prior DWI convictions.2 The indictment included enhancement allegations that Hazlip's two prior felony convictions made him a habitual offender,3 and that the vehicle Hazlip used to commit the offense was a deadly weapon.4

Two months before trial, a clinical psychologist, Dr. Walter Quijano, evaluated Hazlip at his attorney's request to determine whether he was competent to assist in his own defense.5 Hazlip had been diagnosed with bipolar disorder with psychotic features, which he treated with prescription drugs and self-medicated with alcohol and marijuana.6 Dr. Quijano concluded that Hazlip was competent to proceed.7 Defense counsel raised the issue of Hazlip's competency again before jury selection. The trial court denied counsel's request for a formal competency proceeding afterconsidering Dr. Quijano's report, Hazlip's demeanor in response to questioning, and information from the Montgomery County Jail about Hazlip's medication regimen.8

During trial, the State presented evidence that law enforcement received several 911 calls on the night of April 19, 2010. These calls reported that a red and white Chevy Blazer was being driven in a reckless manner. The driver ran a red light and almost collided with other vehicles.9 An eyewitness, Gustavo Olvera, testified that he was out walking with his four-year-old daughter and had to move out of the path of a red and white Chevy Blazer that was careening through his neighborhood at a high rate of speed.10 Moments later, the Blazer crashed into some bushes on Olvera's property and lodged in a ditch.11 The driver, later determined to be Hazlip, got out of the Blazer and began walking towards Olvera's house.12 Olvera used his cellphone to call his wife and told her to lock the doors because he thought that Hazlip was intoxicated.13 Hazlip asked Olvera to help him get his Blazer out of the ditch.14 When Olvera refused, Hazlip threatened to kill him. Olvera called 911.15

Trooper Michael Martin of the Texas Department of Public Safety responded to the call. At the scene, he arrested Hazlip for DWI based on the alcohol on his breath and other signs ofintoxication.16 When Trooper Martin learned that Hazlip had at least two previous DWI convictions, he took Hazlip to a local hospital for a blood draw, as state law required.17 A forensic scientist, Camille Stafford, testified that Hazlip's blood-alcohol level was 0.26, over three times the Texas legal limit of 0.08.18 His blood was drawn more than four hours after he crashed his vehicle.19 Stafford used retrograde extrapolation to estimate that Hazlip's blood-alcohol content had been from 0.06 to 0.10 higher when he was driving.20 The State presented evidence that Hazlip had two previous convictions for DWI at the time of the charged offense.21 The jury found Hazlip guilty of felony DWI and found in the affirmative that Hazlip had used a deadly weapon — his vehicle — in committing the offense.22

During the punishment proceeding, the State presented additional evidence showing that Hazlip's criminal record included four prior DWI convictions, two other previous felony convictions, and a pending assault charge for an altercation with his girlfriend's elderly stepfather.23 The defense presented testimony from Dr. Quijano by way of mitigation. He examined Hazlip and determined that he had a chronic mental illness, bipolar disorder, that was "in partial remission"when he was taking his medication.24 A mental health case-worker and Hazlip's girlfriend also testified about his mental health and his need for medication.25

Hazlip faced a potential sentence of 25 years to life imprisonment.26 After finding two of the enhancement allegations in the indictment to be true, the jury sentenced Hazlip to a 40-year term of imprisonment.27

On direct appeal, Hazlip argued that the trial court erred by: (1) denying his request for a formal competency hearing or raising the issue of competency during the trial; (2) admitting the retrograde-extrapolation evidence from the State's expert without an adequate factual basis for her opinion; and (3) failing to instruct the jury during the punishment phase that "prior bad acts" could be considered only if proven beyond a reasonable doubt.28 The Texas intermediate court of appeals affirmed the conviction in an unpublished opinion, Hazlip v. State, No. 10-04-04149-CR, 2012 WL 4466352 (Tex. App. — Beaumont Sept. 26, 2012). The Texas Court of Criminal Appeals refused Hazlip's petition for discretionary review and the United States Supreme Court denied his certiorari petition. See Hazlip v. Texas, 134 S. Ct. 2704 (2014). The Texas Court of Criminal Appeals denied Hazlip's application for a state writ of habeas corpus under Article 11.07 of the Texas Code ofCriminal Procedure, without a written order, based on findings of fact and conclusions of law entered by the trial court.29 This federal petition followed.

B. Hazlip's Federal Habeas Petition

Hazlip raises an assortment of allegations and claims for relief under 28 U.S.C. § 2254. The respondent has organized the claims as follows:

1. The trial court erred and violated Hazlip's rights because —
a. he was illegally sentenced as a felony DWI offender when the State could not link him to his prior DWI convictions;
b. the trial court committed a Pate violation when it failed to hold a competency hearing;
c. the trial judge was biased against him; and
d. it allowed retrograde-extrapolation evidence to be admitted in error.
2. The prosecutor made an improper remark during closing argument by injecting facts not in evidence.
3. Hazlip's trial counsel was ineffective because she failed to —
a. investigate and proffer an insanity defense;
b. properly challenge his competency or object to the trial court's finding of competency;
c. object to the admission of a 911 call;
d. impeach eyewitness Gustavo Olvera with a prior inconsistent statement;e. object to the jury charge for failing to include an application paragraph for the deadly weapon instruction;
f. object to the trial judge's numerous errors;
g. object to the trial court's bias;
h. object to a violation of "the Rule";
i. interview witnesses or have a firm command of the law; and
j. properly litigate the suppression of custodial statements made in violation of Miranda v. Arizona, 384 U.S. 436 (1966), evidence seized as the result of an illegal arrest, or the blood alcohol test results.
4. There was no evidence to support the jury's deadly weapon finding.
5. Hazlip's appellate counsel was ineffective for failing to raise or adequately brief the following issues —
a. the illegal sentence;
b. the prosecutor's improper closing argument;
c. the sufficiency of the evidence to support the deadly weapon finding;
d. the admission the retrograde-extrapolation evidence; and
e. the lack of an adequate jury instruction on prior bad acts at punishment.
6. Hazlip was denied a fundamentally fair trial by the cumulative effect of the errors committed by the trial court, the prosecutor, and his defense counsel.30

The state court records show that all but one of these claims (Claim 5d) were raised and rejected on the merits, either on direct appeal or collateral review.

The respondent moves for summary judgment, arguing that two of the claims (Claim 4 and Claim 5d) are procedurally barred and the remaining claims lack merit. Each claim is addressed below under the applicable legal standards.

II. The Legal Standards
A. Exhaustion of State Court Remedies is Required

A federal court may not grant habeas relief on a claim unless the petitioner has first exhausted state remedies for that claim. See 28 U.S.C. § 2254(b). Exhaustion requires a petitioner to first present his claims to the highest state court having criminal jurisdiction, in a procedurally proper manner, so that the state court has a fair opportunity to consider challenges to the conviction before those issues come to federal court for habeas corpus review. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). In Texas, habeas petitioners "must exhaust state remedies by pursuing their claims through one complete cycle of either state direct appeal or post-conviction collateral proceedings." Busby v. Dretke, 359 F.3d 708, 723 (5th Cir. 2004). The exhaustion requirement is not met if the petitioner presents new legal theories or factual claims in his federal habeas petition that were...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT