Wardrip v. Thaler

• Decision Date: 09 April 2010
• Docket Number: Civil Action No. 7:01-CV-0247-G.
• Citation: 705 F.Supp.2d 593
• Parties: Faryion Edward WARDRIP, Petitioner,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

705 F.Supp.2d 593

Faryion Edward WARDRIP, Petitioner,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. 7:01-CV-0247-G.

United States District Court,

N.D. Texas,

Wichita Falls Division.

April 9, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bruce Anton, Sorrels Udashen & Anton, Dallas, TX, Mary Margaret Penrose, Texas Wesleyan School of Law, Fort Worth, TX, for Petitioner.

Katherine D. Hayes, Georgette Patrice Oden, Office of the Texas Attorney General, Austin, TX, for Respondent.

ORDER

A. JOE FISH, Senior District Judge.

Before the court are the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Findings”) and the objections of both parties to those Findings. After making an independent review of the pleadings, files and records in this case, the Findings are (except for the recommendation as to resentencing) ADOPTED as the findings and conclusions of the court.

SO ORDERED.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL D. STICKNEY, United States Magistrate Judge.

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. NATURE OF THE CASE

A state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.

II. PARTIES

Petitioner, Faryion Edward Wardrip, is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is the Director of TDCJ-CID.

III. PROCEDURAL HISTORY

After Petitioner pled guilty to capital murder, a jury heard evidence from the prosecution and defense regarding punishment and assessed Petitioner's punishment at death by lethal injection. State v. Wardrip, No. F-99-0988-E, 1999 WL 34866004 (367th District Court of Denton County, Tex. Nov. 5, 1999). ¹ The case was appealed to the Texas Court of Criminal Appeals, and the Court of Criminal Appeals affirmed the death sentence in a published opinion. Wardrip v. State, 56 S.W.3d 588 (Tex.Crim.App.2001). Petitioner filed a state application for writ of habeas corpus on October 26, 2000. The Court of Criminal Appeals denied relief in an unpublished order based on the trial court's findings and its own review. Ex parte Wardrip, No. 49,657-01 (Tex.Crim.App. November 14, 2001).

Petitioner filed an initial federal petition for writ of habeas corpus on December 31, 2002. Respondent filed an answer on April 23, 2003, and furnished the state court records. Petitioner filed a reply on September 23, 2003. This Court granted Petitioner's request for an evidentiary hearing and conducted hearings on October 11, 2006, and November 1, 2006. Petitioner filed a post-hearing brief on January 10, 2007, and Respondent filed a post-hearing brief on February 7, 2007.

IV. RULE 5 STATEMENT

Respondent states that Petitioner has failed to exhaust state court remedies with respect to his first and eighth grounds for relief. Respondent asserts that Petitioner did not address these claims either on direct appeal or in his state writ of habeas corpus and that they are therefore procedurally barred. Furthermore, Respondent also contends that Petitioner's other six claims were not exhausted at the state level because Petitioner has presented a substantial amount of evidence to this Court that was never presented at the state court level. Nonetheless, Respondent asserts that, in the alternative, all of Petitioner's claims should also be denied on their merits pursuant to 28 U.S.C. § 2254(b)(2).²

V. ISSUES

A. Petitioner's Sixth Amendment rights were violated because his trial attorney provided ineffective assistance of counsel in the following seven respects:

1. Trial counsel failed to conduct an adequate pre-trial investigation (ground one);

2. Trial counsel failed to place into evidence Petitioner's prison record as mitigating evidence (ground two);

3. Trial counsel failed to present evidence that Petitioner had undergone a “complete transformation” in the fourteen years since he committed the murders (ground three);

4. Trial counsel failed to place into evidence any psychiatric testimony (ground four);

5. Trial counsel continuously emphasized the prosecution's case when questioning potential jurors during voir dire (ground five);

6. Trial counsel continuously raised the issue of parole when questioning jurors during voir dire (ground six);

7. Trial counsel made only a perfunctory closing statement at the conclusion of the trial (ground seven).

B. The cumulative effect of trial errors undermines confidence in the jury's verdict (ground eight).

This Court held evidentiary hearings on Petitioner's second, third, and fourth grounds for relief.VI. STANDARD OF REVIEW

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted 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 a State court proceeding.

28 U.S.C. § 2254(d) (2006).

Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.2001). Under the “contrary to” clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the “unreasonable application” clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413, 120 S.Ct. 1495. Under Williams, a state court unreasonably applies Supreme Court precedent if it “unreasonably extends a legal precedent from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495.

Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495 (5th Cir.2000). Under § 2254(d)(2) federal courts “give deference to the state court's findings unless they were “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” ” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.2000) (as modified on denial of rehearing). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

This statute applies to all federal habeas corpus petitions which, as with the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.1997).

VII. FACTUAL BACKGROUND

The Texas Court of Criminal Appeals recited the following factual background in its opinion on direct appeal:

Appellant pleaded guilty to the capital murder of Terry Sims. The State presented evidence of the offense during the punishment phase of the trial. Leza Boone, Sims' friend and co-worker, testified that she and Sims finished working their shifts at Bethania Hospital in Wichita Falls at approximately 11:15 p.m. on the night of December 20, 1984. They planned to exchange Christmas gifts at the home of a friend after work and Sims was to stay at Boone's residence that night to help her study for her final exam the following day. Boone was unexpectedly called to return to the hospital to work the next shift, so she drove Sims to Boone's residence after the Christmas gift exchange. She dropped Sims off at approximately 12:30 a.m. on December 21, 1984.

Boone finished her shift at the hospital at approximately 7:15 a.m. and returned to her residence. Sims did not answer the door, so Boone obtained a key from her landlord who lived two doors down. Boone opened the door and noticed that the living room was in disarray. Sims did not respond when Boone yelled her name, so Boone ran back to her landlord's residence and told him that something was wrong. The landlord then entered Boone's residence and discovered Sims' dead body.

Sims was found lying naked on her left side in a pool of blood on the bathroom floor. Her hands were bound tightly behind her back with part of an extension cord that was tied in four knots. Her body was covered in blood and there was blood splattered on the bathroom walls and floor. The living room and front bedroom were in disarray. There were blood stains on the bed sheets and the floor in the front bedroom. Sims' bloodstained clothes were on the floor in the

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