Howard v. Thaler

• Decision Date: 10 April 2013
• Docket Number: CIVIL ACTION NO. H-12-0026
• Parties: ERNEST EUGENE HOWARD, (TDCJ-CID #1580049) Petitioner, v. RICK THALER, Respondent.
• Court: U.S. District Court — Southern District of Texas

ERNEST EUGENE HOWARD, (TDCJ-CID #1580049) Petitioner,

v.RICK THALER, Respondent.

CIVIL ACTION NO. H-12-0026

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

DATED: April 10, 2013

MEMORANDUM AND OPINION

The petitioner, Ernest Eugene Howard, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging a 2009 state felony conviction for cocaine possession. The respondent filed an answer and motion to dismiss, (Docket Entry No. 12), with a copy of the state court record. (Docket Entry No. 9). Howard filed a response. (Docket Entry No. 13). Based on careful consideration of the pleadings, the motion and response, the record, and the applicable law, this court grants the respondent's motion and, by separate order, enters final judgment. The reasons are set out below.

I. Background

A jury found Howard guilty of the felony offense of cocaine possession. (Cause Number 1190594). Howard pleaded true to the enhancement paragraphs relating to two prior convictions, one for possession of a controlled substance (Cause Number 516369), and another for unauthorized use of a motor vehicle (Cause Number 577072). On June 8, 2009, the jury sentenced Howard to an 18-year prison term. The Fourteenth Court of Appeals of Texas affirmed Howard's conviction on October 19, 2010. Howard v. State, No. 14-09-00550-CR (Tex. App. -- Houston [14th Dist.] 2011, pet. ref'd) (not designated for publication). The Texas Court of Criminal Appeals refused Howard'spetition for discretionary review on May 11, 2011. On August 17, 2011, Howard filed an application for state habeas corpus relief. On November 30, 2011, the Texas Court of Criminal Appeals denied the application without written order, on findings of the trial court, without a hearing. Ex parte Howard, Application No. 56,936-03 at cover.

On January 3, 2012, this court received Howard's federal petition. Howard contends that his conviction is void for the following reasons:

(1) his right to due process was violated because he was incompetent to stand trial;

(2) he did not voluntarily waive counsel, and his request for new counsel was denied;

(3) he did not voluntarily waive counsel because he was incompetent;

(4) the trial court abused its discretion by failing to conduct a sua sponte inquiry as to Howard's competence;

(5) law enforcement lacked probable cause to arrest him;

(6) he was subjected to an unconstitutional search and seizure; and

(7) appellate counsel rendered ineffective assistance by failing to raise the following issues:

a. incompetence to stand trial;

b. ineffective assistance of trial counsel;

c. incompetence to waive counsel;

d. trial court error for failing to conduct an adequate inquiry into his competency;

e. factually insufficient evidence; and

f. unconstitutional search and seizure.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 6-7E). The respondent argues that Howard's fourth ground is procedurally defaulted,¹ his fifth and sixth grounds are not cognizable, and his remaining grounds lack merit. Each issue is analyzed below.

II. The Applicable Legal Standards

Howard's petition is reviewed under the federal habeas statutes, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002); Nobles v. Johnson, 127 F.3d 409, 413 (5th Cir. 1997), citing Lindh v. Murphy, 521 U.S. 320 (1997). Subsections 2254(d)(1) and (2) of the AEDPA set out the standards of review for questions of fact, questions of law, and mixed questions of fact and law that result in an "adjudication on the merits." An adjudication on the merits "is a term of art that refers to whether a court's disposition of the case is substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

The AEDPA provides as follows, in pertinent part:

(d) An application for a 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 the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

A federal court may not issue Howard the relief he seeks unless the Texas court's adjudication of his claim "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." 28 U.S.C. § 2254(d)(1). The legal application must be "objectively unreasonable," meaning more than merely "erroneous or incorrect." Williams v. Taylor, 529 U.S. 362, 409, 411 (2000) (internal quotation marks omitted); Tucker v. Johnson, 242 F.3d 617, 620 (5th Cir. 2001). For example, a decision unreasonably applies clearly established law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Williams, 529 U.S. at 407-08. The focus is on the state court's ultimate decision, not whether the state court "discussed every angle of the evidence." Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc).

A state court's factual findings are entitled to deference on federal habeas corpus review and are presumed correct under 28 U.S.C. § 2254(e)(1), unless the petitioner rebuts those findings with "clear and convincing evidence." Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citing Hughes v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005) and 28 U.S.C. § 2254(e)(1)). This deference extends not only to express findings of fact, but to the implicit findings of the state court as well. Garcia, 454 F.3d at 444-45 (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)).

In this circuit, pro se habeas petitions such as Howard's are construed liberally and are not held to the same stringent and rigorous standards as are pleadings filed by lawyers. See Martin v. Maxey, 98 F.3d 844, 847 n.4 (5th Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988); Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981). This court broadly interprets Howard's state and federal habeas petitions. Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).

III. Statement of Facts

The appellate court summarized the evidence at trial, as follows:

At trial, Houston Police Officer Kirk Milton testified that on November 6, 2008, he was patrolling in an unmarked police vehicle with Sergeant Cullen Bean. While circling around a Shell gas station, known as a center for prostitution, Milton observed appellant come out of the store, pour wine into a Styrofoam cup, and drink it. According to Milton, the station was a "non-premise property," meaning that it did not "have a license for people to stand outside and drink." Milton further explained that it was a violation of law to consume alcohol on non-premise property.

The two officers approached appellant, identified themselves, and detained him. While conducting a "pat-down" search of appellant incident to arresting him for the alcohol consumption violation, the officers discovered a glass pipe in each of his front pants pockets. Milton explained that such pipes are used by some drug users to smoke crack cocaine. The pipes were subsequently submitted for testing, and an analyst with the Houston Police Department Crime Laboratory testified that residue in the pipes tested positive for cocaine. Officer Milton further testified that around the same time as appellant's arrest, another man was arrested at the gas station for public intoxication.

During cross-examination by appellant, acting pro se, Milton acknowledged that he could present no evidence that appellant was consuming alcohol on the store's premises except Milton's own testimony. Specifically, Milton acknowledged that he had not preserved either the Styrofoam cup, the bottle of wine, or the wine itself as evidence. He explained, however, that having found the glass pipes on appellant (possession of which could be a felony offense if they were found to contain cocaine), he felt that there wasno need to preserve the evidence pertaining to the lesser (misdemeanor) charge of consuming alcohol on non-premise property. Appellant further questioned Milton regarding the charges against the other man arrested at the gas station. Milton again specifically indicated that the individual was arrested for public intoxication.

Appellant then attempted to introduce into evidence a complaint, along with some booking information, filed by Sergeant Bean allegedly against the other man arrested at the scene of appellant's arrest. The complaint apparently charged the man with "transporting a prostitute to an area for profit." During a conference outside of the jury's presence, the trial judge stressed that the complaint was not filed by Officer Milton. The State then objected to the proffered evidence on the grounds of "hearsay, relevance and improper predicate." The trial court sustained the objection.

Prior to trial, appellant's then counsel filed a motion to suppress any evidence pertaining to the glass pipes. In the motion, counsel stated only very generally that appellant was unlawfully detained and arrested without a warrant. The court carried the motion with the case and held a hearing outside the presence of the jury

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