Shankles v. DIRECTOR, TDCJ-ID, 9:93-CV-186.

• Decision Date: 08 March 1995
• Docket Number: No. 9:93-CV-186.,9:93-CV-186.
• Citation: 877 F. Supp. 346
• Parties: Gary Wayne SHANKLES v. DIRECTOR, TDCJ-ID.
• Court: U.S. District Court — Eastern District of Texas

877 F. Supp. 346

Gary Wayne SHANKLES v. DIRECTOR, TDCJ-ID.

No. 9:93-CV-186.

United States District Court, E.D. Texas, Lufkin Division.

March 8, 1995.

COPYRIGHT MATERIAL OMITTED

Gary Shankles, pro se.

MEMORANDUM ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HANNAH, District Judge.

Petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254.

The court heretofore ordered that this matter be referred to the Honorable Earl S. Hines, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The court has received and considered the Report of the United States Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available evidence. No objections to the Report of the United States Magistrate Judge were filed by the parties.

Accordingly, the findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's recommendations.

FINAL JUDGMENT

This action came on before the Court, Honorable John Hannah, Jr., District Judge, presiding, and the issues having been duly considered and a decision having been duly rendered, it is

ORDERED and ADJUDGED that this Petition for Writ of Habeas Corpus is DENIED. All motions by either party not previously ruled on are hereby DENIED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HINES, United States Magistrate Judge.

This is a petition for a writ of habeas corpus filed by Gary Wayne Shankles, a convicted prisoner in the custody of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID," formerly the Texas Department of Corrections, "TDC"), Eastham Unit. Jurisdiction is based on 28 U.S.C. § 2254.

This action was referred to a United States magistrate judge pursuant to Title 28 U.S.C. § 636, for review, evidentiary hearing if deemed necessary, and submission of a report and recommendation.

I. NATURE OF THE CASE AND EXHAUSTION OF STATE REMEDIES

On February 19, 1982, in Edgewood, Texas, James H. Bullard was robbed at gunpoint in the driveway of his home. The robber instructed Bullard to remove his shoes, shirt, and pants, then fled in Bullard's pick-up truck.

Bullard ran to the house, grabbed a gun, and gave chase in another vehicle. He was unable to catch the robber. The robber abandoned Bullard's truck and entered another, kept waiting by an accomplice.

Approximately an hour after the robbery, the police stopped petitioner at a rural roadblock. He was ordered out of his white pickup truck and placed under arrest with his passenger, Daniel Reardon.

The police brought Bullard to the site of the arrest and Bullard identified petitioner as the robber. Bullard claimed to have been robbed of $1200. The police confiscated six one-hundred dollar bills from petitioner's person.

The next day, a search warrant for petitioner's truck was obtained. Six one-hundred dollar bills were found behind the dashboard.

Petitioner was indicted for aggravated robbery in the 294th District Court of Van Zandt County, Texas. He entered a plea of not guilty in Cause No. 12,975. Petitioner further was charged with prior convictions for enhancement of punishment purposes. He pleaded not true to the enhancement provision.

At trial, petitioner claimed Bullard owed Reardon money from gambling debts. Petitioner argued he had accompanied Reardon to Bullard's house and Bullard had given them $1200 and a .357 caliber handgun as partial payment of the debt. Petitioner contended that after he and Reardon left the house, Bullard concocted the entire robbery to recover his payment and handily dispose of his debt.

On October 13, 1983, a jury convicted petitioner of aggravated robbery and found the enhancement conviction true. The jury assessed punishment at fifty years confinement in TDC.

The trial court's judgment was affirmed on direct appeal by the Court of Appeals for the Twelfth Supreme Judicial District of Texas. Shankles v. State, No. 12-84-0005-CR (Tex. App. — Tyler Mar. 28, 1985). On January 22, 1986, the Texas Court of Criminal Appeals rejected Shankles petition for discretionary review. Shankles v. State, P.D.R. No. 502-85 (Tex.Crim.App.1986). Petitioner also filed two state writes of habeas corpus, both of which were denied without written orders. Ex Parte Shankles, Application No. 17,875-02 (Tex.Crim.App. Oct. 7, 1992); Ex Parte Shankles, Application No. 17,875-1 (Tex. Crim.App. Mar. 3, 1988). Due to the procedural history of this case, it is properly before this court.

II. STANDARD OF REVIEW FOR FEDERAL EVIDENTIARY HEARING

To be merit a federal evidentiary hearing, the burden is on the habeas corpus petitioner to allege facts which, if proved, would entitle him to relief. Taylor v. Maggio, 727 F.2d 341, 347 (5th Cir.1984). No hearing is required where the petitioner alleges only conclusory allegations, Mattheson v. King, 751 F.2d 1432, 1448 (5th Cir.1985), cert. dismissed, 475 U.S. 1138, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986), or where the record is complete and the evidence presented is sufficient to provide a full review of the petitioner's claim. Skillern v. Estelle, 720 F.2d 839, 850-51 (5th Cir.1983), cert. denied sub nom., Skillern v. Procunier, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984); Baldwin v. Maggio, 704 F.2d 1325, 1327-28 (5th Cir.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2669, 81 L.Ed.2d 374 (1984). Unless the habeas corpus petitioner alleged with specificity a claim upon which relief can be granted and demonstrated his state hearing was not a full, fair, or adequate hearing, see 28 U.S.C. § 2254(d), the decision of whether to hold an evidentiary hearing is discretionary in the district court. Daigre v. Maggio, 705 F.2d 786, 787-88 (5th Cir.1983).

No federal evidentiary hearing is required in this case. The record is complete and the evidence presented at trial and in the state habeas corpus proceeding is sufficient to provide full review of petitioner's claims.

III. DISCUSSION

Petitioner asserts the following points of error:

1. There was insufficient evidence proffered at trial to support the jury's verdict of guilty.

2. Disposal of evidence seized from the offense did not conform to state law.

3. He was subjected to an illegal arrest.

4. He was subjected to an illegal search and seizure.

5. The victim's in-court identification should have been suppressed.

6. Texas Code of Criminal Procedure art. 42.12, § 15(b) is an unconstitutional bill of attainder.

7. Texas Code of Criminal Procedure art. 42.12, § 15(b) violates the Double Jeopardy Clause.

8. Texas Penal Code § 12.42 does not authorize sentences for aggravated robbery.

9. A fingerprint card used to identify the petitioner should have been suppressed.

10. The jury was not instructed on the presumption of unfavorable evidence.

11. The jury was not given a definition of reasonable doubt.

12. Petitioner had ineffective assistance of counsel at trial and upon appeal.

13. Petitioner was without counsel at a critical stage in his prosecution.

None of petitioner's arguments form the basis of habeas corpus relief. Each of petitioner's points will be discussed infra.

(1) There was sufficient evidence proffered at trial to support the jury's verdict.

Petitioner contends Bullard's testimony at trial was perjurious and uncorroborated. Specifically, he argues the state presented no witness who saw a high-speed chase, heard gunshots, saw Bullard in a state of undress or with $1200 before the robbery. According to petitioner, there "was not a scintilla of evidence presented that would add credibility to Bullard's testimony."

The correct standard of review for the evaluation of a sufficiency of evidence habeas claim is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Testimony cannot be declared incredible as a matter of law unless it is "so unbelievable on its face that it defies physical laws." United States v. Gardea Carrasco, 830 F.2d 41, 43 (5th Cir.1987).

Review of the trial record reveals a rational jury could have chosen to believe Bullard and disbelieve the defense's rendition of the facts. The essence of a jury's function is to make these kinds of credibility judgments. Petitioner's mere conclusory assertion that Bullard was lying does not rise to the level necessary to usurp a jury's credibility determinations. Moreover, this court is not cognizant of any state or federal law which requires eyewitness testimony to be corroborated by independent witnesses or otherwise.

(2) Compliance with state procedural law is not an issue properly before the court.

Petitioner claims the six hundred-dollar bills taken from behind his truck's dashboard were wrongfully released to Bullard by the Sheriff of Van Zandt County, in violation of Texas State law. SEE TEX.CODE CRIM.PROC. ANN. arts. 18.10, 18.11 (Vernon Supp.1991). Petitioner did not have the opportunity to inspect the bills and collect forensic evidence, including fingerprints. He claims the violation unduly prejudiced his opportunity to disprove his involvement in the crime. This ground for habeas relief lacks merit.

A habeas petitioner must establish a violation of the federal Constitution or laws or treaties of the United States before a federal court can grant a writ of habeas corpus. Showery v. Samaniego, 814 F.2d 200, 201 (5th Cir.1987). The failure to follow state procedural requirements does not mandate federal habeas corpus relief. Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982); Neyland v. Blackburn, 785 F.2d 1283 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 352 (1986); Moreno...