Pond v. Davis, CIVIL ACTION NO. H-13-1300

• Decision Date: 24 September 2019
• Docket Number: CIVIL ACTION NO. H-13-1300
• Parties: WILLIAM POND, (TDCJ-CID #1608119) Petitioner, v. LORIE DAVIS, Respondent.
• Court: U.S. District Court — Southern District of Texas

WILLIAM POND, (TDCJ-CID #1608119) Petitioner, v. LORIE DAVIS, Respondent.

CIVIL ACTION NO. H-13-1300

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

September 24, 2019

MEMORANDUM AND OPINION

Petitioner, William Pond, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging a conviction in the 359th Judicial District Court of Montgomery County, Texas. Respondent filed an answer, which this court converts to a motion for summary judgment,¹ (Docket Entry No. 13), and copies of the state court record. Pond has filed his response. (Docket Entries Nos. 18 & 20). The threshold issue is whether Pond has presented meritorious grounds for federal habeas corpus relief.

I. Background

Pond was indicted for two counts of aggravated sexual assault of a child. He pled not guilty and requested a jury trial. The jury deadlocked on March 31, 2008 and the trial court declared a mistrial. (Docket Entry No. 6-11, p. 11). The State retried him. A jury found Pond guilty of the felony offense of aggravated sexual assault of a child. (Cause Numbers 06-04-3788I-CR and 06-04-3788II-CR). On October 12, 2009, the jury sentenced Pond to a sixty-year prison term on each count, to be served concurrently. The Ninth Court of Appeals of Texas affirmed Pond's conviction on June 15, 2011. Pond v. State, No. at 09-09-00483-CR, 2011 WL 2420828 (Tex. App. - Beaumont [9th Dist.] 2011, pet. ref'd)(not designated for publication). The Texas Court of Criminal Appeals refused Pond's petition for discretionary review on November 9, 2011. Pond filed an application for state habeas corpus relief on February 5, 2013, which the Texas Court of Criminal Appeals denied without written order, on findings of the trial court, without a hearing on May 1, 2013. (Docket Entry No. 6-40, Ex parte Pond, Application No. 79,267-01 at 2).

With the assistance of counsel, Pond filed this federal petition on May 3, 2013. Pond contends that his conviction is void for the following reasons:

(1) The trial court violated Pond's due process and confrontation rights by excluding testimony that the complainant's mother encouraged her to make a sexual assault allegation against Pond;

(2) Trial counsel, Stephen Jackson, rendered ineffective assistance by failing to:

a. file a motion in limine and object to opinion testimony that the complainant was credible;

b. object to inadmissible opinion testimony that Pond used fear and intimidation to keep the complainant quiet;

c. object to the court's improper comment on the weight of the evidence;

d. file a motion in limine and object to a witness referring to the complainant as the victim; ande. call the complainant's brother as a witness to testify that his mother told him that Pond had sexually abused him; and

(3) Appellate counsel, Judith Shields, rendered ineffective assistance by failing to:

a. brief the issue that the trial court erred in allowing the prosecutor to use argument and inflammatory language towards Pond during cross-examination; and

b. brief the issue that the trial court allowed a witness to testify for the State about the national problem of child sex crimes.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, p. 8).

II. The Applicable Legal Standards

This Court reviews Pond's petition for writ of habeas corpus under the federal habeas statutes, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 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).

Sections 2254(d)(1) and (2) of 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). A state-court determination of questions of law and mixed questions of law and fact is reviewed under 28 U.S.C. § 2254(d)(1) and receives deference unless it "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state-court decision is "contrary to" Supreme Court precedent if: (1) the state court's conclusion is "opposite to that reachedby [the Supreme Court] on a question of law" or (2) the "state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at an opposite result. Williams v. Taylor, 120 S. Ct. 1495 (2000). A state court unreasonably applies Supreme Court precedent if it unreasonably applies the correct legal rule to the facts of a particular case, or it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 1495. Questions of fact found by the state court are "presumed to be correct . . . and [receive] deference . . . unless it 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Hill, 210 F.3d at 485 (quoting 28 U.S.C. § 2254(d)(2)).

A state court's factual findings are entitled to deference on federal habeas corpus review and are presumed correct under section 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)).

While, "[a]s a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases," Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.), cert. denied, 531 U.S. 831 (2000), the rule applies only to the extent that it does not conflict with the habeas rules. Section 2254(e)(1) - which mandates that findings of fact made by a state court are "presumed to be correct" - overrides the ordinary rule that,in a summary judgment proceeding, all disputed facts must be construed in the light most favorable to the nonmoving party. Unless the petitioner can "rebut[ ] the presumption of correctness by clear and convincing evidence" as to the state court's findings of fact, those findings must be accepted as correct. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002).

III. Statement of Facts

The Ninth Court of Appeals summarized the evidence at trial as follows:

On February 26, 2006, officers with the Montgomery County Sheriff's Department responded to a 9-1-1 call by Toni Pain alleging a sexual assault. When Officer Gerald Bruce arrived at the scene Pain was "upset" and told him that she had arrived home from the store and found her husband, Pond, on top of her young daughter. Pain told Bruce that they were under a blanket and that Pond got up "fixing his pants" and went into the bathroom. Pain told Bruce that her daughter, A.P., who was eight years old at the time of the alleged assault, "pulled up her underwear and her pants." Pain further told Bruce that when Pain confronted Pond he admitted that he had been sexually assaulting A.P. "for six months."

Bruce testified that Pain indicated that Pond had fled the residence when she called the police. A.P. was not at the residence when Bruce arrived and he advised Pain that A.P. needed to be brought back to the residence. Police gathered evidence at the scene including the blanket that A.P. and Pond had been under, the pants Pond was wearing at the time of the assault, and the shorts and panties A.P. was wearing at the time of the assault. Police were unable to locate Pond. After speaking with the responding officers, Pain took A.P. to the hospital to be examined.

At the time of trial, A.P. was twelve years old. A.P. testified that on February 26, 2006, she was eight years old. A.P. stated that she did not recall how old she was the first time that her stepfather sexually assaulted her. A.P. testified that Pond touched her privates "with his private." She further testified that Pond touched the inside of her bottom with his private. A.P. did not tell her mom because she was scared. A.P. stated that the first time Pond assaulted her he told her not to tell anyone. A.P. explained that the assaults happened "a lot" at the "old house." A.P. also stated that at some point the abusestarted happening again after they moved to the trailer on Fire Tower Road. A.P. told the jury that the assaults occurred in her room, her mom's room, and on the couch in the living room. A.P. explained that Pond would sometimes call her into her parents' bedroom and assault her. She further stated that sometimes he would get into the bed she shared with her little sister, take off his pants, take her shorts off, and put his private in her bottom. On some of these occasions Pond would fall asleep in her bed. A.P. further stated that the assaults happened "a lot" on the couch.

A.P. testified that on the day her mom walked in while Pond was assaulting her, Pond had called her over to the couch to come lay down with him, pulled her pants down, and "did the same thing he'd been doing." When asked if this meant, "the same thing that he did ... with his private in your private?" A.P. responded, "Yes, sir." A.P. stated that her siblings were either outside or in their rooms during the assault. A.P. testified that she and Pond were under a blanket and Pond had his pants off. A.P. explained that she was lying on the couch facing "up" when her mot

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