Hurdsman v. Lumpkin

• Decision Date: 18 February 2022
• Docket Number: 4:21-CV-427-O
• Parties: RODNEY ADAM HURDSMAN, Petitioner, v. BOBBY LUMPKIN, DIRECTOR, Respondent.
• Court: U.S. District Court — Northern District of Texas

RODNEY ADAM HURDSMAN, Petitioner, v. BOBBY LUMPKIN, DIRECTOR, Respondent.

No. 4:21-CV-427-O

United States District Court, N.D. Texas, Fort Worth Division

February 18, 2022

OPINION AND ORDER

REED O'CONNOR UNITED STATES DISTRICT JUDGE.

Came on for consideration the petition of Rodney Adam Hurdsman Petitioner, under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. The Court, having considered the petition, the response, the reply, the record and applicable authorities, finds that the petition should be denied.

I. BACKGROUND

Respondent has custody of Petitioner pursuant to a judgment and sentence under Cause No. CR17817 in the 271st District Court of Wise County, Texas, for theft of property valued between $20, 000 and $100, 000. Petitioner is serving a sentence of seventy-five years. Petitioner appealed and the Second Court of Appeals of Texas affirmed the judgment. Hurdsman v. State, No. 02-17-00319-CR, 2018 WL 5832116 (Tex. App.-Fort Worth Nov. 8, 2018, pet. ref'd). The pertinent facts are set forth in the appellate opinion and need not be repeated here. The Court of Criminal Appeals of Texas refused his petition for discretionary review. Id.

Petitioner filed a state application for writ of habeas corpus, which was denied without written order on the findings of the trial court and upon independent review. Doc.^[1] 18-58.^[2]Petitioner timely filed his federal application. Doc. 1.

II. GROUNDS OF THE PETITION

Petitioner asserts five grounds in support of his petition, worded as follows:^[3]

GROUND ONE: Applicant was denied his right to effective counsel during pretrial plea-bargaining in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution.

GROUND TWO: Applicant was denied counsel altogether during critical stages of the case in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution.

GROUND THREE: Applicant was denied the right to a speedy trial in violation of the Sixth Amendment to the U.S. Constitution.

GROUND FOUR: Applicant was denied due process and a fair trial in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution because he was shackled during trial.

GROUND FIVE: Applicant was denied the right to effective assistance on direct appeal as guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution.

Doc. 1 at 6-7A.

III. APPLICABLE LEGAL STANDARDS

A. Section 2254

A writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the petitioner shows that the prior adjudication:

(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 proceedings.

28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law 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 than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-09; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002)(en banc) (focus should be on the ultimate legal conclusion reached by the state court and not on whether that court considered and discussed every angle of the evidence). A determination of a factual issue made by a state court is presumed to be correct. 28 U.S.C. § 2254(e)(1). The presumption of correctness applies to both express and implied factual findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). Absent express findings, a federal court may imply fact findings consistent with the state court's disposition. Marshall v. Lonberger, 459 U.S. 422, 433 (1983). Thus, when the Texas Court of Criminal Appeals denies relief without written order, such ruling is an adjudication on the merits that is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hill, 210 F.3d at 486.

In making its review, the Court is limited to the record that was before the state court. 28 U.S.C. § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

B. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, the petitioner must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Missouri v. Frye, 566 U.S. 133, 147 (2012). “[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697; see also United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000)(per curiam). “The likelihood of a different result must be substantial, not just conceivable, ” Harrington, 562 U.S. at 112, and a petitioner must prove that counsel's errors “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 686). Judicial scrutiny of this type of claim must be highly deferential and the petitioner must overcome a strong presumption that his counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.

Where, as here, the state court adjudicated the ineffective assistance claims on the merits, this Court must review Petitioner's claims under the “doubly deferential” standards of both Strickland and § 2254(d). Cullen, 563 U.S. at 190. In such cases, the “pivotal question” for the Court is not “whether defense counsel's performance fell below Strickland's standard”; it is “whether the state court's application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101, 105. In other words, the Court must afford “both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013)(quoting Cullen, 563 U.S. at 190); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

Simply making conclusory allegations of deficient performance and prejudice is not sufficient to meet the Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).

IV. ANALYSIS

Petitioner's first and second grounds allege that he received ineffective assistance of counsel. In his first ground, he alleges that counsel failed to convey his acceptance of an 18-month plea offer. Doc. 1 at 6; Doc. 12 at 4-8. In his second ground, he alleges that he had no counsel at all during a critical stage of pretrial proceedings. Doc. 1 at 6; Doc. 12 at 9-11. Relief was denied in the state habeas proceedings on both of these grounds. To be entitled to proceed here, Petitioner must show by clear and convincing evidence that the state court's fact findings were erroneous. 28 U.S.C. § 2254(e). This he has not done.

In support of his first ground, Petitioner alleges: Petitioner retained Jim Shaw to represent him in the underlying criminal case on April 24, 2014. Raymond Napolitan, Shaw's associate, took the lead in representing Petitioner. On August 13, 2014, after a brief court appearance, Napolitan told him that he had negotiated an 18-month plea deal. Petitioner accepted the deal, but Napolitan failed to convey his acceptance to the State in a timely manner. As a result of this failure, Petitioner was ultimately sentenced to 75 years' imprisonment. Doc. 12 at 4-6.

In assessing this claim in the state habeas proceedings, among other things, the trial court relied upon Napolitan's affidavit denying that such a plea deal had even been offered. Doc. 18-71 at 2-5. Petitioner says that the finding that an offer was not made is clearly erroneous because he proffered a recording of a conversation between him and Napolitan while Petitioner was confined in the Williamson County jail on June 3, 2015, in which Napolitan acknowledged the existence of an 18-month plea offer. In other words, he wants the Court to review de novo the trial court's fact findings and reach the opposite conclusion, that there was a plea offer. However, the Court “is not considering the issue on a clean slate.” Harper v. Lumpkin, 19 F.4th 771, 786 (5th Cir. 2021). It has the trial court's findings and the state habeas conclusion that Petitioner was not entitled to relief on this ground. To prevail, Petitioner must show that the adjudication of the claim 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.” 28 U.S.C. § 2254(d)(2). This he is not able to do.

Petitioner contends that his alleged recording establishes that a plea offer was made. He fails to consider that the state court was apparently not persuaded that the recording was authentic.^[4] Given Petitioner's behavior...