McCarty v. Davis, CIVIL ACTION NO. H-18-0711

• Decision Date: 23 January 2019
• Docket Number: CIVIL ACTION NO. H-18-0711
• Parties: JAMES LAWRENCE McCARTY, TDCJ #2045586, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

JAMES LAWRENCE McCARTY, TDCJ #2045586, Petitioner, v. LORIE DAVIS, Director, Texas Departmentof Criminal Justice - Correctional Institutions Division, Respondent.

CIVIL ACTION NO. H-18-0711

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

January 23, 2019

MEMORANDUM OPINION AND ORDER

James Lawrence McCarty has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1), seeking relief under 28 U.S.C. § 2254 from a murder conviction entered against him in Harris County. Pending before the court is Respondent Lorie Davis's Motion for Summary Judgment With Brief in Support ("Respondent's MSJ") (Docket Entry No. 18). In response McCarty has filed his own Motion for Summary Judgment, Motion for Leave of Court, and Demand for Jury Trial, With Brief in Support ("Petitioner's MSJ") (Docket Entry No. 30). McCarty has also filed more than one motion to supplement the pleadings with additional exhibits, authority, argument, and a new claim (Docket Entry Nos. 29, 31, 32, 33). After considering all of the pleadings, the state court record, and the applicable law, the court will grant Respondent's MSJ and will dismiss this action for the reasons explained below.

I. Background

A grand jury in Harris County, Texas, returned an indictment against McCarty in Case No. 1431305, charging him with causing the death of Cyril Jones by shooting her with a deadly weapon, a firearm.¹ On September 8, 2015, McCarty entered a plea of nolo contendere or no contest to the murder charges against him without an agreed recommendation from the State as to punishment, which would be determined by the trial court following a presentence investigation ("PSI").² After admonishing McCarty orally and in writing of the consequences of his plea, the trial court found him guilty and deferred making any further findings subject to the PSI.³

Probation officers with the Harris County Community Supervision and Corrections Department conducted an investigation and prepared a PSI Report regarding the incident that resulted inthe murder charges against McCarty.⁴ According to the PSI Report McCarty was a passenger in a white van driven by the victim's husband, Willie Jones, when they stopped to buy some beer at a Valero gas station in Houston, Texas, on June 7, 2014.⁵ The victim, who was seated in the front passenger seat, remained in the van along with an acquaintance named Myra Robinson.⁶ When McCarty was unable to purchase beer because his credit card was declined, he became agitated and left the store.⁷ McCarty then pulled out a .25 caliber automatic pistol and had a brief exchange with the victim before he shot her in the head, killing her as she was seated in the van.⁸ When a bystander (Chance Perkins) attempted to intervene McCarty fired at him three times until someone else helped take McCarty to the ground.⁹

McCarty told investigators that he "really [didn't] know what happened," and did not recall the shooting or how he ended up in police custody.¹⁰ McCarty denied being under the influence of drugs or alcohol on the day of the offense, but claimed that he hadpreviously ingested some PCP or synthetic marijuana ("K-2") dipped in embalming fluid while partying with two women he did not know on the night before.¹¹

The offense was captured on the gas station's surveillance video camera, which depicts McCarty leaving the store and approaching the victim while she was seated in the front passenger side of the van with the window rolled down.¹² The video shows that McCarty had words with the victim before firing a single shot at close range, striking her in the head, then being apprehended by Perkins, who happened to be passing by at the time.¹³

At a sentencing hearing in the 230th District Court for Harris County, held on January 20, 2016, Perkins testified that he saw McCarty shoot and kill the victim as she sat in the front passenger seat of the van.¹⁴ A combat veteran who served in both Iraq and Afghanistan, Perkins recounted how McCarty shot at him three times as he struggled to take McCarty to the ground and that, in Perkins' opinion, McCarty was definitely trying to kill him during that altercation.¹⁵

Willie Jones testified that he believed McCarty had smoked some PCP on the day the incident occurred because he had seen McCarty under the influence previously.¹⁶ Jones testified that McCarty was not acting normally before they arrived at the gas station and that McCarty became agitated when his credit card was declined by the cashier.¹⁷ While Jones was in the store attempting to cash in some lottery tickets, he saw McCarty start "flipping out" near the van.¹⁸ Jones then saw McCarty shoot his wife, killing her.¹⁹

In support of the PSI Report McCarty's defense counsel provided numerous character-reference letters from friends and family members who described McCarty's work ethic, his reputation as a kind person, and his religious faith.²⁰ Defense counsel also called several character witnesses at the sentencing hearing who testified that McCarty's actions on the day of the offense were totally out of character.²¹

McCarty testified on his own behalf during the sentencing proceeding and denied doing any drugs the day of the offense.²²When pressed to explain his behavior, McCarty reiterated the statement given previously to investigators by admitting that he had smoked some K-2 cigarettes that had been dipped in embalming fluid by two women he did not know on the evening before the offense occurred.²³

After considering the PSI Report, the exhibits, and the testimony at the sentencing hearing, the trial court sentenced him to 55 years in prison.²⁴

Although McCarty filed a notice of appeal from the judgment, his appointed counsel reviewed the record and filed a brief pursuant to Anders v. California, 87 S. Ct. 1396 (1967) (an "Anders brief"), certifying that in counsel's opinion the appeal was without merit.²⁵ The intermediate court of appeals agreed that the appeal was "wholly frivolous and without merit" and summarily affirmed the conviction in an unpublished opinion. See McCarty v. State, No. 14-16-00085-CR, 2016 WL 6238406, at *1 (Tex. App. - Houston [14th Dist.] Oct. 25, 2016).²⁶ Thereafter, the Texas Court of Criminal Appeals denied McCarty's pro se petition for discretionary review.²⁷

McCarty challenged his conviction by filing an Application for a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under [Texas] Code of Criminal Procedure, Article 11.07 ("Application") with the trial court.²⁸ In his Application, McCarty raised the following claims:

1. His trial counsel was deficient for coercing his plea and a litany of other reasons.

2. The trial court abused its discretion by holding a hearing on the PSI Report, which amounted to a bench trial.

3. The trial court violated his right to due process at the sentencing hearing by denying him the right to cross-examine witnesses and admitting his statements in violation of the privilege against self-incrimination.

4. The evidence was factually and legally insufficient to support a finding of guilt.²⁹

The trial court, which also presided over the plea and sentencing proceedings, entered findings of fact and concluded that McCarty was not entitled to relief.³⁰ The Texas Court of Criminal Appeals agreed and denied relief without a written order on March 7, 2018, adopting findings made by the trial court without a hearing.³¹

McCarty now contends that he is entitled to federal habeas relief from his conviction under 28 U.S.C. § 2254(d). McCarty's Petition, which the court has allowed him to supplement, raises the following claims that have been re-ordered by the court for purposes of analysis:

1. The state courts "failed to rule correctly" on the claims he presented on collateral review.

2. He was denied effective assistance of counsel because his trial attorney failed to adequately investigate or raise defenses and coerced his plea without mounting any defense.

3. He was denied effective assistance of counsel on direct appeal when his attorney filed an Andersbrief.

4. His defense counsel allowed the trial court to hold an illegal PSI hearing for the purpose of securing an "involuntary plea."

5. The trial court erred by holding a PSI hearing.

6. His statements were admitted into evidence at the PSI hearing in violation of the Fifth Amendment privilege against self-incrimination.

7. He was denied the right to cross-examine witnesses at the PSI hearing.

8. The trial court treated the PSI hearing like a bench trial.

9. The evidence was factually and legally insufficient to support a finding of guilt.³²

The respondent moves for summary judgment, arguing that Claims Five through Eight are barred by the doctrine of procedural default.³³ Noting that McCarty's plea was voluntarily and knowingly made, the respondent argues that his remaining claims are either waived or without merit.³⁴

After the respondent moved for summary judgment, McCarty filed a series of motions in response. McCarty filed Petitioner's MSJ, which argues primarily that he is entitled to relief because he was denied effective assistance by his trial and appellate counsel.³⁵ McCarty filed Petitioner's Motion for Leave of Court, to Submit an Affidavit by Ruby Robinson, and Medical Records, with Brief in Support ("Motion to Supplement the Record") that seeks leave to obtain and submit additional evidence.³⁶ In addition, McCarty has filed a Motion [for] Leave to File Motion for Judicial Notice, Final Supplement with Brief in Support ("Motion for JudicialNotice"), and a Motion [for] Leave to File to Add Supplemental Argument Due to Newly Discovered U.S. Supreme Court Decision ("Motion to Provide Supplemental Argument"), asking the court to take note of a recent Supreme Court case, Wilson v. Sellers, 138 S. Ct. 1188 (2018), and to consider additional argument based on that decision.³⁷ McCarty has also filed a Motion for Leave to Consider Claim of Incorrect Date (Birth), on...