Powell v. Stephens, 3:13-CV-4805-B (BH)

• Decision Date: 11 June 2015
• Docket Number: No. 3:13-CV-4805-B (BH),3:13-CV-4805-B (BH)
• Parties: GRETCHON WINDELL POWELL, ID # 1607214, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

GRETCHON WINDELL POWELL, ID # 1607214, Petitioner,
v.
WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent.

No. 3:13-CV-4805-B (BH)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

June 11, 2015

Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to Special Order 3-251, this habeas case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant filings and applicable law, the habeas petition should be DENIED.

I. BACKGROUND

Gretchon Windell Powell (Petitioner), an inmate currently incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division (TDCJ-CID), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent is William Stephens, Director of TDCJ-CID (Respondent).

A. Factual and Procedural History

Petitioner challenges his convictions and sentences in case numbers 33731CR and 33732CR in the 40th District Court of Ellis County, Texas. (doc. 3, at 2; CR-01 at 46-50¹ (judgment and sentence for enhanced aggravated assault of a public servant--number 33731-CR); CR-02 at 44-48 (judgment and sentence for enhanced burglary-number 33732-CR). He pled "not guilty" to each

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charge and "true" to the enhancements. Id. The state appellate court recounted the evidence at trial as follows:

Lester Taylor testified that he is the Chief of Police in Maypearl, a town of about 1,000 people, and the police department is very small. On Monday, September 15, 2008, Taylor came on duty at about 3:00 a.m., relieving Lauri Boudreau, the officer who had been on duty. Taylor patrolled the city until about 4:30 or 4:45 a.m. and then went to his office in the police department, which is located in city hall. At about 5:30 a.m., he heard someone banging on the front door of the building, which was closed and locked with a dead bolt. He got up and went to the door of his office. Just after Taylor stepped through his office door, he heard "[o]ne hard thud" and "the front door flung open and a black male entered." Taylor drew his service weapon, a nine-millimeter pistol that he carried cocked with the safety on, and pointed it at the man, whom he later identified as Powell. He asked Powell why he had kicked in the door, and he responded, "Where am I?" Taylor told Powell that he was in the police department. Taylor was wearing a shirt that showed his badge along with his name and identification as the Chief of Police. Powell then said that he needed help because he had been in an accident and there might be injuries.

Taylor asked Powell to put his hands on the wall and "looked at him just to see if he had anything on him," but Taylor did not see anything. Taylor then asked Powell for identification. Powell took a wallet out of his pocket, took the driver's license out, put the driver's license on top of the wallet, and handed Taylor both the driver's license and the wallet. Taylor looked at the driver's license and verified that it belonged to Powell.

Once Taylor had identified Powell, he told him they would have to walk down the hall to the back door. They did so and then went out into the bay of the city maintenance barn where Taylor's marked squad car was parked. Taylor told Powell to get into the car, but Powell instead walked to the center part of the bay. Taylor walked to the bay door to raise it with a chain. Taylor had to holster his weapon to raise the door, but he was watching Powell. However, the chain slipped as Taylor was raising the door, and he took his eye off Powell. Taylor was then hit from the rear and pushed into the wall. Powell got Taylor's pistol and told Taylor to pull the door down or he would shoot Taylor. Taylor pulled the door down.

Taylor began pleading with Powell not to shoot him, but Powell pointed the gun at Taylor and pulled the trigger. When the gun did not fire, Taylor ran toward the back of another squad car, hoping that the door might be unlocked and he would be able to get a shotgun out of it. When he got to the rear of the squad car, Powell yelled at him to stop or he would shoot. Taylor hesitated and looked at Powell, who was still pointing the gun at Taylor and pulled the trigger again. Taylor then ran around the squad car, and Powell pulled the trigger once more. The third time, Powell was

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using both hands to try to fire the gun. Taylor said that he was in fear of imminent bodily injury and that Powell clearly intended to kill him each time he pulled the trigger.

When the gun did not fire on the third try, Powell started fumbling with the gun and the magazine fell out. While Powell was trying to put the magazine back in the gun, Taylor ran to the back door and was able to close and bolt it. He then locked himself in his office with a loaded shotgun and called 9-1-1. Deputies from the Ellis County Sheriff's Department arrived shortly thereafter, and a SWAT team searched the building, but Powell was not found. Taylor never recovered his pistol, and Officer Boudreau testified that, after that day, she never again saw him with the pistol.

Taylor identified Powell at trial as the person who broke in and tried to shoot him. Taylor stated that the building was not open to the public at 5:30 a.m. and that Powell did not have consent to enter the building that morning. The door that was kicked in had a wooden box attached to it where people would place payments on the weekends when city hall was not open. Taylor said that people often get paid on Fridays and pay their utilities over the weekend.

Robert Allwardt and Mike Aman, investigators with the Ellis County District Attorney's office, testified that they responded to the scene. Allwardt stated that, among other things, he talked to Taylor and took fingerprints from the areas that Powell might have touched at the scene, but none of the fingerprints collected were identified as belonging to Powell. Both Allwardt and Aman also testified that they did not know why the Ellis County Sheriff's Department did not conduct the investigation.

The next day, Allwardt went to Powell's last known address. There, he met the manager of the residence and confirmed that Powell had, in fact, resided there. Allwardt then discovered some papers that were identified to be Powell's next to a computer in the common area. The Maypearl City Hall address was written in the lower right-hand corner of one of the papers. The manager of the residence acknowledged that the paper was at Powell's residence at a computer that he had access to, but he could not say with certainty that the paper with the address was Powell's because four men had access to the notepad where the address was written.

Texas Ranger Danny Briley testified that after observing the scene, discussing the events with the other investigators, and talking with Taylor, he obtained an arrest warrant for Powell. Powell was arrested, and Briley then interviewed him. Powell gave a written statement in which he admitted kicking in the door, but, contrary to Taylor's testimony, he stated that he ran away when Taylor tried to open the bay door. Powell's written statement does not discuss Taylor's accusation that Powell took Taylor's gun and tried to shoot Taylor. On cross-examination, Briley additionally stated that he remembered another discussion with Powell:

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Gretchon told me that he needed some weed. He needed a hookup, and that he would be paid some money, have X amount of dollars if he would go kick in the door to the Maypearl Police Department, but that once he busted the door down, his part was done.

Powell told Briley there were two accomplices, Little C and Little Cousin.

The defense presented the testimony of two investigators from the Ellis County Sheriff's Office. Jason Westmoreland testified that he was initially assigned to begin an investigation into what happened at the Maypearl Police Department. However, later that day, his lieutenant advised him "per the sheriff" that he was not to conduct any further investigation. He heard from deputies talking at the scene that the sheriff did not want to be involved because he thought there was something strange about the way the situation had "gone down" and he wanted an outside agency to investigate it. On cross-examination, Westmoreland acknowledged that he had not talked to the sheriff about it and agreed that "a bunch of deputies [were] shooting their mouths off" and there was not any truth to any of it. Phillip Slaughter, the other investigator, testified that he initially responded to the scene at the Maypearl Police Department but was later ordered to leave the scene by the sheriff.

Powell v. State, 2011 WL 2242483, at *1-3.

On October 20, 2009, a jury found Petitioner guilty and sentenced him to 70 years for the aggravated assault charge, and 10 years for the burglary charge, to be served concurrently. Id. Petitioner filed a direct appeal, and his convictions were affirmed by the Waco Court of Appeals in June of 2011. Powell v. State, Nos. 10-09-00364-CR and 10-09-00365-CR, 2011 WL 2242483 (Tex. App.- Waco, 2011). He did not file a petition for discretionary review. (doc. 3, at 3.) Petitioner filed two state applications for writ of habeas corpus, but they were denied by the Texas Court of Criminal Appeals without written order on October 16, 2013. Ex parte Powell, WR-77,283-01, and WR-77,283-02, at...