Moore v. Thaler

• Decision Date: 22 April 2011
• Docket Number: CIVIL ACTION NO. H-10-1900
• Parties: JOHN LEE MOORE, TDCJ #1359685, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice -Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

JOHN LEE MOORE, TDCJ #1359685, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice-Correctional Institutions Division, Respondent.

CIVIL ACTION NO. H-10-1900

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

Dated: April 22, 2011

MEMORANDUM AND ORDER

State inmate John Lee Moore (TDCJ #1359685) has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge his state court conviction for aggravated sexual assault of a child. The respondent has answered with a motion for summary judgment, arguing that Moore is not entitled to the relief he seeks [Doc. # 8]. Moore has filed a reply [Doc. # 11]. After considering all of the pleadings, the state court records, and the applicable law, the Court grants the respondent's motion, denies the petition, and dismisses this case for reasons that follow.

I. BACKGROUND

A local grand jury returned separate indictments against Moore in two related cases (Harris County cause numbers 1019524 and 1019525), charging him with sexual assault of a child younger than 14 years of age. In those indictments, Moore was accused of sexuallyassaulting his 12-year-old niece by penetrating the victim's "female sexual organ" with his penis on July 26, 2003, and with his finger on July 27, 2003. The State of Texas enhanced the indictments for purposes of punishment with an additional allegation that Moore had one prior felony conviction.

The record shows that Moore entered a guilty plea to the charges against him on March 21, 2005, in exchange for a 20-year prison sentence. See Clerk's Record, at 43-55. On April 15, 2005, however, the trial court granted Moore's request to set aside the judgment and withdraw his guilty plea. See id. at 56, 58-61. The trial court also appointed new defense counsel. See id. at 57. In March of 2006, the cases were tried together before a jury in the 178th District Court for Harris County, Texas. On March 16, 2006, the jury found Moore guilty as charged in both indictments. After Moore conceded that the enhancement allegation was true, the trial court sentenced Moore to concurrent terms of 20 years' imprisonment in each case.

On direct appeal, Moore complained that the trial court erred by admitting outcry testimony from the victim's therapist without conducting a hearing on the reliability of the testimony and by permitting the State "to argue to the jury evidence which was not introduced at trial." Moore also challenged the admissibility of a videotaped interview that he gave at the Children's Assessment Center and a written statement in which Moore admitted that he had "fondle[d]" his niece "between the legs." An intermediate court of appeals rejected Moore's arguments and affirmed both convictions after summarizing the evidence presented during the trial: Background

In the [S]ummer of 2003, twelve-year-old I.J. would visit her aunt's house to play with her two cousins. [Moore], who was the aunt's boyfriend, also lived in the house. During one of these visits, I.J. and her cousins were playing outside. When I.J. went inside to the bathroom, [Moore] entered the bathroom, grabbed I.J., and took her to his bedroom. There, [Moore] penetrated I.J.'s vagina with his finger and then his penis. A couple of days later, I.J. returned to her aunt's house to play with her cousins. This time, [Moore] sexually assaulted I.J. in the bathroom by inserting his finger into her vagina.

After the assaults, I.J. began experiencing behavior problems and was placed on juvenile probation for six months. As part of her probation conditions, I.J. attended therapy. After two months of therapy, I.J. broke down and told her therapist about the two instances of sexual abuse by [Moore]. The therapist reported the matter to authorities by calling a state 800 number designated for reporting child abuse.

Moore v. State, 233 S.W.3d 32, 34-35 (Tex. App. — Houston [1st Dist.] 2007). Moore did not appeal further by filing a petition for discretionary review with the Texas Court of Criminal Appeals.

Moore challenged his conviction further by filing a state habeas corpus application under Article 11.07 of the Texas Code of Criminal Procedure. In that application, Moore alleged that he was actually innocent because a nurse's examination of the victim for signs of sexual trauma did not reveal any physical evidence of penetration. Moore complained further that (1) he was denied effective assistance of counsel; (2) the trial court made several erroneous rulings; and (3) that Article 38.07 of the Texas Code of Criminal Procedure is unconstitutional.¹ After entering specific findings of fact and conclusions of law, the statehabeas corpus court recommended that the application be denied. The Texas Court of Criminal Appeals agreed and denied Moore's application without a written order based on the habeas corpus court's findings. See Ex parte Moore, Nos. 11,484-03 & 11,484-04 (Tex. Crim. App. April 28, 2010).²

Moore, who remains in custody of the Texas Department of Criminal Justice-Correctional Institutions Division (collectively, "TDCJ"), now seeks a writ of habeas corpus to challenge his conviction under 28 U.S.C. § 2254. In his pending petition and supporting memorandum, Moore raises the same claims that he presented on state habeas corpus review. The respondent argues that Moore is not entitled to relief and that his petition must be dismissed. The parties' contentions are discussed further below under the governing federal habeas corpus standard of review.

II. STANDARD OF REVIEW

The respondent has filed a motion for summary judgment asking this court to deny relief and dismiss the petition. Motions for summary judgment are typically governed by Rule 56 of the Federal Rules of Civil Procedure. In this instance, the respondent's summary-judgment motion must be determined in compliance with the federal habeas corpus statutes. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002); see also Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). Federal habeas corpus proceedings filed after April 24, 1996 are governed by provisions of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). To the extent that the petitioner's claims were "adjudicated on the merits" in state court, the AEDPA standard found at 28 U.S.C. § 2254(d) applies.³

Claims presenting pure questions of law and mixed questions of law and fact are governed by 28 U.S.C. § 2254(d)(1), which precludes habeas relief unless a petitioner demonstrates that the state court's decision to deny a claim "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); Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Courtor if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08 (2000). A state court unreasonably applies clearly established precedent if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133, 141 (2005). Under this standard, an unreasonable application is more than merely incorrect or erroneous; rather, the state court's application of clearly established law must be "objectively unreasonable." Williams, 529 U.S. at 409.

A state court's findings of fact are presumed to be correct on federal habeas review, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). This presumption extends not only to express findings of fact, but to the implicit findings of the state court as well. See Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citations omitted). Where pure questions of fact are concerned, a petitioner is not entitled to relief unless he demonstrates that the state court's decision 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); see also Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008).

As this deferential standard reflects, the AEDPA has "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002) (quotation omitted). In that respect, the AEDPA standard "stops short of imposing a complete bar on federal court relitigation ofclaims already rejected in state court proceedings." Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786 (2011). The Supreme Court has recently underscored the extent of this deferential standard:

[28 U.S.C. § 2254(d)] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Richter, 131 S. Ct. at 786-87. The...