Walker v. Stephens, CIVIL ACTION NO. H-13-2112

• Decision Date: 24 March 2015
• Docket Number: CIVIL ACTION NO. H-13-2112
• Parties: STEVEN LEE WALKER, TDCJ-CID No. 1588096, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

STEVEN LEE WALKER, TDCJ-CID No. 1588096, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

CIVIL ACTION NO. H-13-2112

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

March 24, 2015

MEMORANDUM AND ORDER

This habeas case, concerning the validity of a state court judgment and filed pursuant to 22 U.S.C. § 2254, is before the Court on Respondent William Stephens' ("Respondent") Answer [Doc. # 9], filed January 2, 2014, seeking dismissal of the Petition for a Writ of Habeas Corpus filed by Petitioner Steven Lee Walker ("Walker"). The Court construed the answer to be a motion for summary judgment and ordered Walker to file a response [Doc. # 12]. Walker has filed a response [Doc. # 13]. After considering the parties' pleadings, the evidence of record, and the applicable law, the Court denies the petition, and dismisses this case.

I. BACKGROUND

A. State Court Procedural History

On July 24, 2008, a Montgomery County grand jury indicted Walker for driving while intoxicated, a felony offense because he had two prior convictions for driving while intoxicated. Indictment [Doc. # 7-7 at 24-25; Doc. # 7-16 at 8-9]. The indictment further alleged that Walker had four additional driving while intoxicated convictions. Id. After being tried by a jury, Walker was found guilty of "Driving While Intoxicated" . . . 3rd Degree enhanced to Habitual Felony Offender." Judgment of Conviction by Jury [Doc. # 7-7 at 26; Doc. # 7-16 at 36]. Walker entered a plea of true to the enhancements and elected to have the trial court assess punishment. Id. After hearing the evidence, the court found the enhancement paragraphs to be true and sentenced Walker to twenty-five years incarceration in TDCJ. Id.

Walker appealed the trial court's judgment which was affirmed by the Court of Appeals for the Ninth District of Texas on June 23, 2010. Walker v. State, No. 09-09-00338-CR, 2010 WL 2533774 (Tex. App. - Beaumont 2010, pet. ref'd). The Texas Court of Criminal Appeals ("TCCA") refused Walker's petition for discretionary review ("PDR") on November 10, 2010. Walker, PD-0959-10 (Tex. Crim. App.) [Doc. # 7-9 at 23].

Walker filed a state application for writ of habeas corpus, pursuant to Article11.07 of the Texas Code of Criminal Procedure, on May 3, 2011. State Habeas Record ("SHR") [Doc. # 7-5 at 18] .¹ On March 20, 2013, the trial court entered its Findings of Fact and Conclusions of Law and recommended that relief be denied. The court further found no issues requiring an evidentiary hearing and ordered that state district clerk forward the record to the TCCA. Id. The TCCA denied the application without a written order on April 24, 2013. Ex parte Walker, No. 78,756-03; [Doc. # 7-5 at 2].

B. Facts Established at Trial

The state alleged that on or about May 23, 2008, Walker operated a motor vehicle in a public place while intoxicated. Indictment [Doc. # 7-7 at 24]. The Ninth Court of Appeals described the events as follows:

After noticing a truck being driven rather erratically, including swerving into a ditch and hitting mailboxes, R.V.² noted the truck's license plate number and then backed up to the first damaged mailbox. Walker also returned to the mailbox where R.V. had parked. Walker then stepped from the driver's side of his truck and asked R .V. what he was doing. R.V. noticed that Walker had doubled his fist, staggered, slurred his speech, and smelled of alcohol. Walker told R.V. that if he wanted trouble, he had come to the right place. Walker then drove off and pulled into what R.V. thought was a driveway. At that point, R.V. "dialed 911."

Sergeant Eric Ward with the Montgomery County Sheriff's Office was sent in response to R.V.'s call. When Sergeant Ward approached the scene, he noticed a truck parked partially in a driveway and partially in the roadway. Sergeant Ward approached the truck and saw Walker sitting in the driver's seat with the keys in the ignition. Sergeant Ward requested Walker step out of the truck. At first, Walker did not cooperate, but then Walker finally exited the truck. Sergeant Ward noticed that Walker smelled of alcohol, had bloodshot eyes, and swayed as he stood.

Deputy Tom Thompson arrived a short time after Sergeant Ward had been sent to the scene. When Deputy Thompson arrived, he noticed that Walker smelled of alcohol; had bloodshot, glassy eyes; and that Walker was "very unstable on his feet." After speaking with R.V., Deputy Thompson conducted field sobriety tests. According to Deputy Thompson, the field sobriety tests revealed several clues that Walker was intoxicated. Deputy Thompson noticed scratches on Walker's truck "where he had hit the mailboxes." Deputy Thompson also noticed some knocked down mailboxes. After completing the field sobriety tests, Deputy Thompson arrested Walker for driving while intoxicated.

Following his arrest, Walker took a breath test; at trial, Walker stipulated that the results showed Walker's blood alcohol concentration at 0.123. According to Deputy Thompson, Walker told him that he was driving the truck, and that he was under the influence of alcohol.

During the trial, and to impeach R.V.'s credibility, Walker offered evidence to show that R.V. had three prior criminal convictions, two for burglary of a building and one for criminal trespass. The three convictions, dated 1985, 1986, and 1988, each occurred more than ten years prior to the trial. The trial court refused to admit the convictions. Walker re-urged his request after the State recalled R.V., but the trial court again refused to allow him to introduce evidence about R.V.'s prior criminal record.

We abated the appeal to allow the trial court to clarify the evidence that it had decided to exclude. After a hearing, the trial court supplemented the reporter's record with copies of judgments of the convictions at issue, as well as with a copy of a civil judgment against R.V. for failure to pay his child support. During Walker's trial, the trial court had also excluded evidence showing that R.V. had been held in contempt of court for failing to pay his child support.

Walker v. State, 2010 WL 2533774, **1-2 (Tex. App.-Beaumont, 2010).

C. The Federal Habeas Petition's Claims

Walker filed the pending habeas petition with the Court on July 17, 2013 [Doc. # 1 at 10].³ He asserts the following claims:

1. Walker was denied effective assistance of counsel because his attorney failed to:

a. present Robbie Vercher's [RV] contempt of court conviction;

b. protect and perfect the record;

c. object to retrograde extrapolation testimony and accompanying video;

d. object to the prosecution's comment on his failure to call certain witnesses; and

e. investigate alibi witnesses.

2. The trial court erred by:

a. failing to preserve material exculpatory evidence;

b. allowing Deputy Thompson's testimony regarding the field sobriety tests and accompanying video; and

c. allowing the jury to see Walker in handcuffs.

3. Walker's appellate counsel rendered ineffective assistance by failing to raise issues on appeal that would afford relief.

4. Walker is entitled to relief under the cumulative error doctrine..

Petition [Doc. # 1 at 6-7]; Petitioner's Memorandum [Doc. # 2 at 1-9].

II. LEGAL STANDARD

Generally, motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. However, the respondent's motion for summary judgment must be analyzed in light of federal habeas corpus statutes. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002). All federal habeas corpus proceedings filed after April 24, 1996 are governed by 28 U.S.C. § 2254 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

For claims containing both legal and factual questions, a federal court may not issue a writ of habeas corpus unless the adjudication in state court resulted in a holding that "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."28 U.S.C. § 2254(d)(1); see Harrington v. Richter, 131 S. Ct. 770, 785 (2011). A state court's decision is contrary to clearly established federal law if it reaches a legal conclusion that directly conflicts with a prior holding of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08 (2000); see also Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. Tex. 2006). A state court unreasonably applies clearly established federal law if it correctly identifies the governing legal principle but unreasonably applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133, 141 (2005); see also Nelson, 472 F.3d at 292.

The Supreme Court recently clarified that "review 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, 131 S. Ct. 1388, 1398 (2011). All of the state court's findings of fact "are 'presumed to be correct' unless the petitioner rebuts this presumption through 'clear and convincing evidence.'" Nelson, 472 F.3d at 292. Additionally, "all credibility choices and conflicting inferences are to be resolved in favor of the verdict." Ramirez v. Drake, 398 F.3d 691, 695 (5th Cir. 2005) (quoting United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999)). When a dispute is purely factual, a petitioner is not entitled to relief unless he proves that the state court's decision was"based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008) (quoting 28 U.S.C. § 2254(d)(2)). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect, but whether that...