Sherry v. Davis
| Decision Date | 20 April 2017 |
| Docket Number | A-15-CV-0574 RP |
| Parties | JERRY WAYNE SHERRY v. LORIE DAVIS |
| Court | U.S. District Court — Western District of Texas |
Before the Court is Petitioner's Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Document 1). Petitioner, proceeding pro se, has paid the applicable filing fee. For the reasons set forth below, the undersigned orders that Petitioner's application for writ of habeas corpus is denied.
Petitioner is in custody pursuant to a judgment and sentence of the 21st Judicial District Court of Bastrop County, Texas. Petitioner was convicted of driving while intoxicated third or more habitual and sentenced to a term of fifty years' imprisonment. In this habeas action Petitioner alleges he was denied his right to the effective assistance of both trial and appellate counsel; that the statute under which he was convicted, Texas Transportation Code § 724.012, is unconstitutional; that he was denied his right to due process of law because the court reporter's transcript failed to include the substance of a bench conference; and that prosecutorial misconduct deprived him of his right to due process of law.
Respondent avers she has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 21st Judicial District Court of Bastrop County, Texas. Petitioner was charged by indictment with driving while intoxicated third or more offense, with two prior consecutive felony convictions alleged for the purpose of enhancing his punishment. A jury found Petitioner guilty of the charge and the enhancements stated in the indictment, and he was sentenced to a term of fifty years' imprisonment on February 6, 2013. Petitioner's appellate counsel filed a timely motion seeking a new trial, which motion was denied.
Petitioner's conviction and sentence were affirmed by the Texas Third Court of Appeals on August 1, 2013. Sherry v. State, No. 03-13-00126-CR, 2013 WL 4487559 (Tex. App.-Austin 2013, pet. ref'd). A petition for discretionary review was refused by the Texas Court of Criminal Appeals on March 12, 2014. Sherry v. State, No. PD-1494-13. Petitioner filed an application for a state writ of habeas corpus on April 21, 2015, which was denied without written order by the Texas Court of Criminal Appeals. Document 12, Exh. 30 at 59.
The factual background of this case is found in the Texas Third Court of Appeals' opinion:
Sherry v. State, No. 03-13-00126-CR, 2013 WL 4487559, at *1.
At Petitioner's trial, the jury was shown a video recording of Petitioner's attempts to complete the field sobriety tests. Document 12, Exh. 9 at 44. Trooper Wray testified that Petitioner was placed under arrest on suspicion of driving while intoxicated, based on his observations ofPetitioner, including slurred speech and a "remarkable loss of balance" when Petitioner got out of his truck, id., Exh. 9 at 31, and the results of the field sobriety tests. Id., Exh. 9 at 44.
The transcript is somewhat contradictory with regard to Petitioner's consent to a breath test of his blood alcohol level. Trooper Wray testified:
After placing Petitioner under arrest and reading him the statutory warning, Trooper Wray determined to acquire a blood sample from Petitioner for the purpose establishing his blood alcohol level. Id., Exh. 9 at 47. Petitioner's car was inventoried and towed and he was transported to a medical facility for the purpose of acquiring a blood sample. Id., Exh. 9 at 47. Trooper Wray did not seek a warrant for the blood sample.
Petitioner asserts he is entitled to federal habeas relief because:
1. He was denied his right to the effective assistance of counsel because his trial counsel failed to object to the admission of the evidence of his blood alcohol content, thereby preserving a Fourth Amendment issue for appellate review.
2. He was denied his right to the effective assistance of counsel because his trial counsel failed to strike two jurors for cause.
3. He was denied his right to the effective assistance of counsel because his trial counsel failed to object to improper enhancements stated in the indictment.
4. His conviction was obtained by means of an unconstitutional statute, i.e., Texas Transportation Code § 724.012.
5. The court reporter's record is incomplete because it fails to identify the basis of trial counsel's objection to the indictment.
6. He was denied his right to the effective assistance of counsel because his appellate counsel failed to file an adequate motion for a new trial.
7. He was denied his right to a fair trial because the prosecutor made "improper comments" "solely for the purpose of inflaming the minds of jurors."
Respondent allows Petitioner has exhausted his state court remedies regarding the claims brought in this application. A review of the state court records submitted by Respondent indicates Petitioner properly raised these claims in previous state court proceedings.
The Supreme Court summarized the basic principles established by the Court's many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act in Harrington v. Richter, 562 U.S. 86, 97-100 (2011). The Supreme Court noted that the starting point for any federal court reviewing a state conviction is 28 U.S.C. § 2254, which states:
28 U.S.C. § 2254(d). The Court stated that "[b]y its terms § 2254(d) 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, 562 U.S. at 98.
One of the issues Harrington resolved was "whether § 2254(d) applies when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied." Id. The deference due to a state court decision under § 2554(d) "does not require that there be an opinion from the state court explaining the state court's reasoning." Id. (citations omitted). The Supreme Court reaffirmed that "a state court need not cite nor even be aware of our cases under § 2254(d)" for its opinion to be entitled to deference. Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002)). When a state court decision denying relief is unexplained, the habeas petitioner's burden is to show there was "no reasonable basis for the state court to deny relief." Id. And even when a state court fails to state which of the elements in a multi-part claim it found insufficient, deference is still due to that decision, because "§ 2254(d) applies when a 'claim,' not a component of one, has been adjudicated." Id.
Section 2254(d) permits the granting of federal habeas relief in only three circumstances: (1) when the state court's decision "was contrary to" federal law as clearly established by the holdings of the Supreme Court; (2) when the state court's decision involved an "unreasonableapplication" of such law; or (3) when the decision "was based on an unreasonable determination of the facts" in light of the record before the state court. Id. at 100 (citing 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000)). The "contrary to" requirement "refers to the holdings, as opposed to the dicta, of . . . [the Supreme Court's] decisions as of the time of the relevant state-court decision." Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000) (quotation and citation omitted).
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than . . . [the...
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