McDavid v. Wilson

• Decision Date: 15 October 2021
• Docket Number: 3:17-cv-01843-L (BT)
• Parties: JARVIS DUNK McDAVID, Petitioner, v. J. WILSON, et al., Respondents.
• Court: U.S. District Court — Northern District of Texas

JARVIS DUNK McDAVID, Petitioner,
v.
J. WILSON, et al., Respondents.

No. 3:17-cv-01843-L (BT)

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

October 15, 2021

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

REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

Jarvis Dunk McDavid, a Texas prisoner, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. 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 dismiss McDavid's petition with prejudice.

I.

In March of 2015, a jury in Navarro County, Texas, convicted McDavid of aggravated assault with a deadly weapon.^[1] Specifically, McDavid was convicted of assaulting his wife, LaToya McDavid, who complained that McDavid had pulled her hair, held her down, struck her twice in the face with an open hand, and threatened her while holding a kitchen knife to her throat. See McDavid v. State, No. 10-15-00112-CR, 2015 WL 7873639, at *1 (Tex. App. - Waco, Dec. 3, 2015).

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The trial court sentenced McDavid to fifteen years' imprisonment. The Waco Court of Appeals affirmed the trial court's judgment, see id., and the Texas Court of Criminal Appeals (CCA) refused McDavid's petition for discretionary review. See McDavid v. State, PD-1666-15 (Tex. Crim. App., Apr. 13, 2016). McDavid then filed a state application for writ of habeas corpus, which the CCA denied on the findings of the trial court without a hearing.

On July 5, 2017, McDavid filed his § 2254 petition (ECF No. 1) in this Court.^[2]Shortly thereafter, the Court received McDavid's motion seeking a “Stay and Abeyance” to allow him to exhaust his state court remedies, which the Court granted and then administratively closed the case. The Court reopened the case on McDavid's motion on August 13, 2018.

In his petition, McDavid claims

1. The trial court erred by:

a. admitting testimonial evidence without an opportunity for cross-examination in violation of Crawford v Washington, 541 U.S. 36 (2004); and b. allowing the State to impeach and attack the credibility of its own witnesses through admission of extraneous-offense evidence

2. The prosecutor engaged in prosecutorial misconduct by:

a. making misstatements of material fact; and

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b. “vouching” for the credibility for witnesses that did not testify in court.

3. His attorney provided ineffective assistance of counsel by:

a. waiving an objection to prosecutorial misconduct; and b. failing to conduct an adequate pretrial investigation.

See Pet. As explained below, these grounds are meritless, and the Court should dismiss the petition with prejudice.

II.

A.

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.

See 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

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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, 413 (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.

B.

1. The trial court did not violate Crawford by allowing the State to introduce testimonial evidence.

In his first claim, McDavid argues that the trial court violated Crawford v. Washington, 541 U.S. 36 (2004), when it admitted testimonial evidence without an opportunity for cross-examination.^[3] Pet. 6 (ECF No. 1); Mem. 6-13 (ECF No. 3); Reply 1, 5-7 (ECF No. 26). Specifically, McDavid contends that the trial court allowed the prosecutor to use testimonial statements from a 911 call at trial, but the caller did not testify. Pet. 6 (ECF No. 1); Mem. 6-13 (ECF No. 3). The state appellate court addressed this claim on direct appeal. McDavid, 2015 WL 7873639, at **1-2. The following facts regarding this claim are taken from the state appellate decision:

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Outside the presence of the jury, [McDavid] objected to the admission of the 911 call that was made by LaToya's mother after she received a text message from LaToya about the assault. Amy Zapata, the 911 dispatcher from Corsicana Police Department, testified that: “Upon receiving the call it was a female, advised she received a daughter-a text from her daughter that, that she was being assaulted. And she provided me with the address. And at that time I dispatched the police officers to the location.” Later, Zapata noted the following: “Yes, well, it came in third party, so I got as much information as I could. Based upon the information from the caller I determined that it's possible that the assault was taking place and so we dispatched the police.”

When the State offered the recording of the 911 call for inclusion in the evidence, [McDavid] objected, arguing that, among other things, he was prevented from crossexamining the caller, LaToya's mother, which constituted a violation of the Confrontation Clause.^[4] The state responded that the recording was offered “for the fact that a call was placed to 911, ” not “as evidence that the defendant was assaulting his wife.” The State further argued:

That the nature of that call was that there was of a possible assault occurring and the effect on that was that dispatch sent police officers to the address given by the caller. ....

She's not giving testimony against this defendant. She was placing a call so that an investigation would occur. So that if there was a situation going on the appropriate law enforcement agency could respond.

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At the conclusion of the arguments, the trial court overruled [McDavid's] objection and granted [McDavid] a running objection with regard to the 911 call.

McDavid, 2015 WL 7873639, at *1.

“[A] state defendant has no constitutional right to an errorless trial.” Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir. 1984) (citing Banks v. McGougan, 717 F.2d 186, 190 (5th Cir. 1983)). Rather, on federal habeas review, a court is limited to determining whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize that it is not the province of a federal habeas court to reexamine the state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”); see also Hill v. Johnson, 210 F.3d 481, 491 (5th Cir. 2000). When a petitioner alleges a trial court error, he is entitled to federal habeas relief only if the error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); see also Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983). A petitioner must show that “there is more than a mere reasonable probably that [the court's error] contributed to the verdict. It must have had a substantial effect or influence in determining the verdict.” Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996).

McDavid argues that the 911 call was hearsay evidence admitted in violation of the Confrontation Clause. Mem. 9-13 (ECF No. 3). “What is or is not hearsay

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evidence in a state court trial is governed by state law.” Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997) (citing Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994)). A federal habeas court “does not sit to review the mere admissibility of evidence under state law.” Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998) (citing Peters v. Whitley, 942 F.2d 937, 940 (5th Cir. 1991)). A federal court “will not grant habeas relief for errors in a trial court's evidentiary rulings unless those errors result in a ‘denial of fundamental fairness' under the Due Process Clause. The erroneous admission of prejudicial evidence will justify habeas relief only if the admission was a crucial, highly significant factor in the defendant's conviction.” Neal v. Cain, 141 F.3d 207, 214 (5th Cir. 1998) (internal citations omitted); see also Little, 162 F.3d at 862 (“[O]nly when the wrongfully admitted evidence has played a crucial, critical, and highly significant role in the trial will habeas relief be warranted.”) (citing Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir. 1986)).

McDavid contends that there was no “immediate danger, ” and the emergency the 911 caller was calling about had passed. Mem. 11 (ECF No. 3). Similarly, he claims that there was “no indication the emergency was still ongoing.” Id. McDavid concludes, “[t]his fails to establish the kind of ongoing and immediate threat necessary for the 911 caller to be exempt from confrontation.” Id. However, the Waco Court of Appeals noted that “statements to the police-whether spontaneous or in response to preliminary questions-when police are called...