Sonnenberg v. Davis

• Decision Date: 08 January 2019
• Docket Number: A-18-CV-00450-RP
• Parties: GRAHAM JAY SONNENBERG, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Western District of Texas

GRAHAM JAY SONNENBERG, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

A-18-CV-00450-RP

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

January 8, 2019

ORDER

Petitioner Graham Sonnenberg is pro se in this matter, and has paid the full filing fee for this case. Before the Court are Petitioner's Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 1), Respondent's Answer (ECF No. 11), and Petitioner's Reply and his Request for an Evidentiary Hearing. (ECF Nos. 14 & 15). For the reasons set forth below, Petitioner's Application for Writ of Habeas Corpus and his Request for an Evidentiary Hearing are denied.

STATEMENT OF THE CASE

According to Respondent, the Director has lawful custody of Petitioner pursuant to a judgment and sentence of the 427th District Court of Travis County, Texas. A jury found Petitioner guilty of aggravated assault bodily injury with a deadly weapon and assault strangulation enhanced, and assessed sentences of 16 and 20 years' imprisonment, respectively, which the state court ordered be served concurrently.

A. Background

The Third Court of Appeals summarized the facts and evidence presented at Petitioner's trial as follows:

Alexis Manley testified that, after she had dated Sonnenberg for several months, he came to her house late one night and committed various violent acts including strangling her with his hands and standing on her throat while wearing boots. She testified that he kicked her in various parts of her body, tore some of her hair out, threw her jewelry at her, slapped her, punched her, bit her, and broke her arm. She hit Sonnenberg during the encounter, and testified that he banged his own head against a doorframe. . . .

A neighbor awakened by Manley's "horrific, blood-curdling scream" looked outside, saw a woman lying limp on the ground, and called 911. . . . Officers found Sonnenberg in Manley's apartment, naked (which is how he typically slept) and bleeding. They arrested him. Austin Police Officer Anthony Nolen responded to the scene and photographed Manley's injuries. He testified that she was very upset. He noted little spots of blood in her eyes and that her eyes, nose, and lips were swollen. She eventually accepted transport to the hospital.

Emergency-room triage nurse Jamie Bertsch testified that Manley said that her boyfriend kicked her and held her on the ground with his boot on her neck until she passed out. Bertsch testified that she saw multiple bites on Manley's body, abrasions on her arms and upper back, and a fractured arm.

Sonnenberg v. State, No. 03-14-00530-CR, 2016 WL 3475200, at *1 (Tex. App.-Austin 2016, no pet.). The jury deliberated for four hours before returning its guilty verdict. (ECF No. 12-37 at 16-17).

The jury heard additional testimony from the victim during the punishment phase of the proceedings. (ECF No. 12-22 at 33-51). Additionally, the jury heard testimony from a woman Petitioner dated after the incident in question; she testified Petitioner was both verbally and physically abusive, that he punched, choked, and bit her, and that he damaged her residence and a hotel room. (ECF No. 12-22 at 52-125).¹ The jury deliberated for approximately two and a half hours on Petitioner's punishment. (ECF No. 12-37 at 26 & 28).

Petitioner appealed, asserting: a double-jeopardy claim; the improper admission of expert testimony; trial court error with regard to the denial of his request to poll the jury; and a typographical error in the judgment. Sonnenberg, 2016 WL 3475200, at *1. The appellate court modified the judgment to cite the proper subsection of the Penal Code under which Petitioner was convicted and overruled his other claims for relief. Id. at *5. Petitioner did not seek discretionary review of the appellate court's decision.

Petitioner sought a state writ of habeas corpus, asserting: he was denied the effective assistance of trial counsel; a double jeopardy claim; and a Brady claim. (ECF No. 12-37 at 56-79). The habeas trial court, which was not the convicting court, designated issues and ordered Petitioner's trial counsel to submit an affidavit addressing Petitioner's allegations of ineffective assistance of counsel. The state habeas trial court made findings of fact and recommended the writ be denied. (ECF No. 12-36 at 26-29). The Court of Criminal Appeals denied the writ without written order on the findings of the trial court. (ECF No. 12-27).

B. Petitioner's Grounds for Relief

Petitioner raises the following grounds for relief:

1. His was denied the effective assistance of trial counsel;

2. The prosecution committed Brady error by not timely providing medical records showing that the victim sustained one of her injuries by falling down stairs rather than from the assault; and

3. His convictions for aggravated assault and strangulation assault are duplicative offenses and therefore his conviction and sentencing on both counts violates his right to be free of double jeopardy.

(ECF No. 1 at 9-21).

C. Exhaustion of State Court Remedies

Respondent allows the petition is timely and not successive. (ECF No. 11 at 5). Respondent allows Petitioner's claims were exhausted in the state courts. (Id.).

ANALYSIS

A. The Antiterrorism and Effective Death Penalty Act of 1996

The Supreme Court summarized the basic principles established by the Court's many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") in Harrington v. Richter, 562 U.S. 86, 97-100 (2011). 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 "unreasonable application" 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 Williams v. Taylor, 529 U.S. 362, 412 (2000)).

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 Supreme Court on a set of materially indistinguishable facts. Thaler v. Haynes, 559 U.S. 43, 47 (2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). Under the unreasonable application clause of § 2254(d), a federal court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, "but unreasonably applies that principle to the facts of the prisoner's case." Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000) (quotation marks and citation omitted).

B. The Strickland Standard

Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on an ineffective assistance of counsel claim, the petitioner must establish counsel's performance was deficient and the deficient performance prejudiced the defense. Id. at 687. A habeas petitioner has the burden of proving both prongs of the Strickland test. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008).

Counsel's performance is deficient when it "amount[s] to incompetence under 'prevailing professional norms . . .'" Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). Counsel is "'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Burt v. Titlow, 571 U.S. 12, 22 (2013) (quoting Strickland, 466 U.S. at 690). "A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003).

To demonstrate prejudice, a federal habeas petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112. Because this showing of prejudice must be "rather appreciable," a mere allegation of prejudice or the possibility of a different outcome is not sufficient to satisfy the prejudice prong of Strickland. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994); seealso Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). "'The likelihood of a different result must be substantial, not just conceivable.'" Trevino v. Davis, 829 F.3d 328, 351 (5th Cir. 2016), cert. denied, 138 S. Ct. 179 (2018) (quoting Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012)).

An ineffective assistance of counsel claim fails if the petitioner cannot establish both deficient performance and prejudice; accordingly, the Court need not evaluate both prongs of the test if the petitioner makes an insufficient showing as to either performance or prejudice. Strickland, 466 U.S. at 697; Blanton, 543 F.3d at 235-36. The Fifth Circuit has determined that both prongs of the Strickland test involve mixed questions of law and fact and are analyzed under the "unreasonable application" standard of 28 U.S.C. § 2254(d)(1). Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Whether counsel made a decision to pursue a particular trial strategy is a question of fact and whether that strategy was reasonable is a question of law. Wood v. Allen, 558 U.S. 290, 301, 304 (2010); Trottie v. Stephens, 720 F.3d 231, 244 (5th Cir. 2013). "The standards created by Strickland and § 2254(d) are both highly...