Riemer v. Director

• Decision Date: 14 October 2015
• Docket Number: CIVIL ACTION NO. 4:15cv362
• Parties: JAMES BRADLEY RIEMER, #1854097 v. DIRECTOR, TDCJ-CID
• Court: U.S. District Court — Eastern District of Texas

JAMES BRADLEY RIEMER, #1854097 v. DIRECTOR, TDCJ-CID

CIVIL ACTION NO. 4:15cv362

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

October 14, 2015

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Petitioner James Bradley Riemer, an inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.

Procedural History of the Case

Riemer is challenging his Denton County conviction for two counts of indecency with a child, Cause No. F-2011-2619-E. On November 8, 2012, after a jury trial, he was sentenced to twenty years of imprisonment on each count, with the sentences running consecutively. The conviction was affirmed. Riemer v. State, No. 02-12-00613-CR, 2013 WL 6565057 (Tex. App. - Ft. Worth Dec. 12, 2013, no pet.).

Riemer filed an application for a writ of habeas corpus in state court on July 28, 2014. The State submitted proposed findings of fact and conclusions of law, which were adopted by the state trial court on August 21, 2014. The Texas Court of Criminal Appeals subsequently denied the application without written order on findings of the trial court without a hearing. Ex parte Riemer, No. WR-82,161-01 (Tex. Crim. App. Oct. 22, 2014). Riemer filed a second application for a writ of habeas corpus in state court challenging the conviction on January 12, 2015. The Texas Court of Criminal Appeals dismissed the application as an abuse of the writ pursuant to Tex. Code Crim. Proc. Art. 11.07 § 4(a)-(c). Ex parte Riemer, No. WR-82,161-04 (Tex. Crim. App. April 22, 2015).

Riemer filed the present petition on May 18, 2015. He argues that he is entitled to federal habeas corpus relief because his trial counsel was ineffective for the following reasons:

1. Failure to investigate;

2. Failure to provide fact witnesses; and

3. Cumulative error stemming from counsel's failure to give an opening statement, failure to object to an improper statement, and failure to impeach the State's expert.

The Director filed an answer (docket entry #8) on July 23, 2015. Riemer has not filed a reply.

Factual Background of the Case

The state court of appeals discussed the factual background of the case as follows:

Riemer was charged with two counts of indecency with a child involving Linda, his stepdaughter, and two counts of aggravated sexual assault of a child and one count of continuous sexual abuse of a child involving June, his biological daughter. The trial court denied Riemer's motion to sever, in which he argued that the complainants were different, that the instances involving each complainant purportedly occurred at different times, and that joinder of the offenses would create unfair prejudice against him by bolstering each witness's credibility. The trial court denied the motion to sever.

According to Linda, in 2000, when she was around eight or nine years old, Riemer began inappropriately touching her while her mother Kathy worked the night shift. One night, frightened by a storm, Linda went to Riemer's room and asked if she could sleep there. He agreed, and when she woke up, she was on her stomach, her pants and underwear were around her ankles, and Riemer, who was not wearing pants, was on top of her. Linda said that Riemer's penis touched her "butt cheek," his legs were on either side of her body, and "[f]or lack of a better term, he was humping [her]." Linda also described that on more than one occasion, Riemer put his hand down her pants, beneath her underwear, and held her "butt cheek" and took her hand and placed it on his penis. She said that the "humping" activity happened again a few weeks or months after the first time and that the second time was the last time Riemer did anything to her. Linda stated that during this time period, which was no more than a few months, Riemer did "special stuff" for her, such as letting her watch special shows on television or saying that she was his favorite. Linda said that after she learned at school that what Riemer was doing was wrong, she tried to stay away from him.

According to June, in 2002, when she was around four years old, Riemer began sexually assaulting her and continued to do so for several years, totaling over 200 instances, until she was around eleven years old. As with Linda, June stated that the first assault happened one night while Kathy was working the night shift. June was scared of a storm, went to Riemer's room, and asked to get into his bed. After she climbed into bed with him, Riemer pulled down her pants and underwear, pulled down his clothes, and put his penis into her anus. June said that it hurt, that Riemer told her that she could not tell anyone, and that it was their secret. When she was eight or nine years old, he began putting his penis into her female sexual organ. June said that she did not tell anyone because she was afraid that no one would believe her. June said that Riemer treated her differently from the other children, buying her dolls and cheap jewelry, and that he stopped sexually abusing her when she was eleven years old.

After Riemer separated from Kathy in 2004, June and her brothers would visit him overnight either every weekend or every other weekend until June's March 2011 outcry. June's half-brother Adam noted that June and Riemer had slept in the same bed together every night as far as he could remember but when Adam said something to Riemer about it, Riemer told him that it was none of his business and not to play parent. Both Adam and June's twin brother Jack testified that it was strange that Riemer would let June run around the apartment wearing nothing but her underwear when she was eight or nine years old.

In April 2011, after she learned of June's outcry, Linda reported to the Denton County Sheriff's Department that she had been sexually assaulted as a child. Linda said that she had not told anyone after the first time it happened because she had been young and scared.

The State had filed a motion for cumulative sentences, and after the jury found Riemer guilty of each of the offenses and assessed his punishment, the trial court set the sentences to run consecutively.

Riemer v. State, 2013 WL 6565057, at *1-2 (internal footnotes omitted). The court of appeals noted that it used pseudonyms to protect the complainants' identities. The present petition concerns the indecency charges involving the victim identified as Linda by the state appellate court.

Standard of Review

The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993). Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also present. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997). Federal courts do "not sit as a super state supreme court on a habeas corpus proceeding to review error under state law." Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007) (citations omitted), cert. denied, 552 U.S. 1314 (2008); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983), cert. denied, 469 U.S. 873 (1984).

The petition was filed in 2014, thus review is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a petitioner who is in custody "pursuant to the judgment of a State court" is not entitled to federal habeas corpus relief 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 the State court proceedings.

28 U.S.C. § 2254(d). "By its terms § 2254 bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). AEDPA imposes a "highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and internal quotation marks omitted). With respect to the first provision, a "state court decision is 'contrary to' clearly established federal law if (1) the state court 'applies a rule that contradicts the governing law' announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts." Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)), cert. denied, 551 U.S. 1141 (2007). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, ___, 131 S. Ct. 1388, 1398 (2011). As such, "evidence later introduced in federal court is irrelevant to § 2254(d)(1) review." Id. at 1400. "The same rule necessarily applies to a federal court's review of purely factual determinations under § 2254(d)(2), as all nine Justices acknowledged." Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011), cert. denied, 133 S. Ct. 105 (2012). The Supreme Court has specified that a Texas court's factual findings are presumed to be sound unless a petitioner rebuts the "presumption of correctness by clear and convincing evidence." Miller-El v. Dr...