Wilbanks v. Dir., TDCJ-CID

• Decision Date: 17 November 2022
• Docket Number: Civil Action 4:19cv921
• Parties: DAVID WILBANKS, #02086969 v. DIRECTOR, TDCJ-CID
• Court: U.S. District Court — Eastern District of Texas

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DAVID WILBANKS, #02086969 v. DIRECTOR, TDCJ-CID

Civil Action No. 4:19cv921

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

November 17, 2022

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINE A. NOWAK JUDGE

Pro Se Petitioner David Wilbanks, an inmate confined in the Texas prison system, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1). The petition was referred to United States Magistrate Judge Christine A. Nowak for findings of fact, conclusions of law and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636, and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

Petitioner is challenging his Denton County convictions. A jury found Petitioner guilty of continuous sexual abuse of a child (Count II) and sexual assault (Count III),^[1]and the trial court sentenced him to fifty years' confinement for Count II and twenty years' confinement for Count III, to run consecutively, Cause No. F16-1258-16. (Dkt. #13-15, pp 58-59).

Petitioner appealed his conviction, which was affirmed on January 18 2018. Wilbanks v. State, No. 02-16-00305-CR, 2018 WL 472907 (Tex. App. Jan. 18, 2018) (Dkt. #13-3). Petitioner filed a petition for discretionary review (“PDR”) (Dkt. #13-11), which the Texas Court of Criminal Appeals (“TCCA”) refused on May 9, 2018 (Dkt. #13-12).

Petitioner filed an application for state habeas corpus relief on March 28, 2019.^[2](Dkt. #13-25, pp. 4-23). The state habeas court adopted the State's Proposed Findings of Fact and Conclusions of Law (Dkt. #13-28, pp. 53-67) as its own and recommended that Petitioner's grounds for relief be denied. (Dkt. #13-28, p. 68). On September 18, 2019, the TCCA denied the application without a written order on the findings of the trial court without a hearing. (Dkt. #13-22).

Petitioner timely filed the instant petition on or about December 11, 2019.^[3](Dkt. #1). Petitioner asserts the following claims for relief:

1. Trial counsel rendered ineffective assistance by failing to investigate and raise the following issues:

(a) that B.W.^[4] (the victim), her friend, and the two children's mothers formed a “criminal conspiracy” against him;

(b) that the forensic interviewer had exculpatory evidence that she could have testified to regarding allegations of sexual incidents made by B.W. against other perpetrators and that the Confrontation Clause required admission of the evidence; and

(c) that the trial court constructively amended the indictment by including a larger offense date range in the court's charge than the indictment.

2. The trial judge was biased.

3. The trial court erred by constructively amending the indictment by including a larger offense date range in the court's charge than was in the indictment.

4. Texas defendants are victims of Texas's criminal laws regarding sexual assault against children because the laws guarantee convictions and do not allow defendants to defend themselves by allowing charges to be brought many years after the offense in violation of due process rights.

5. Petitioner is actually innocent of the offenses.

(Dkt. #1, pp. 7-9; Dkt. #1-1). The Director filed a response, arguing that the claims are either without merit, procedurally barred, or not cognizable on federal habeas review. (Dkt. #12). Petitioner filed a reply.^[5](Dkt. #16). In his reply, Petitioner withdraws his actual innocence claim (Claim 5) (Dkt. #16, pp. 4-5); thus, the Court will not address that claim.

II. FACTUAL BACKGROUND

The Second District Court of Appeals set out the facts as follows:

When she was fourteen years old, [B.W.]-who had lived with Wilbanks from time to time while he financially and emotionally supported her family-told her best friend's mother that Wilbanks had repeatedly performed sexual acts with her, beginning with fondling when she was six years old and continuing until the time of her outcry. At the urging of her friend's mother, [B.W.] told her own mother, who contacted the police.

As part of an investigation by both the police and Child Protective Services, Lori Nelson conducted a forensic interview of [B.W.]. During the interview, [B.W.] provided details about what Wilbanks had done to her. [B.W.] told Nelson that Wilbanks began digitally penetrating her when she was six and that he began having intercourse with her when she was about eight or nine, which continued until she was fourteen.

Ultimately, a grand jury issued a three-count indictment charging Wilbanks with (1) indecency with a child by engaging in sexual contact with [B.W.] when she was younger than seventeen (Count One); (2) continuous sexual abuse of [B.W.] before she turned fourteen (Count Two); and (3) sexually assaulting [B.W.] when she was younger than seventeen (Count Three). See Tex. Penal Code Ann. §§ 21.02, 21.11(a)(2), 22.011(a)(2)(C) (West Supp. 2017). After a trial, a jury found Wilbanks not guilty of Count One but guilty of Counts Two and Three and assessed his punishment at fifty years' confinement for Count Two and at twenty years' confinement for Count Three. The trial court sentenced Wilbanks in accordance with the jury's assessment and ordered the sentences to run consecutively.

Wilbanks, No. 02-16-00305-CR, 2018 WL 472907, at *1 (Dkt. #13-3, pp. 2-3) (footnote omitted).

III. STANDARD FOR FEDERAL HABEAS CORPUS RELIEF

The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1354, 1367 (5th Cir. 1993); Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996); Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005). In the course of reviewing state proceedings, a federal court does not sit as a super state appellate court. Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).

The prospect of federal courts granting habeas corpus relief to state prisoners has been further limited by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The new provisions of § 2254(d) provide that an application for a writ of habeas corpus 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) was contrary to federal law then clearly established in the holdings of the Supreme Court; (2) involved an unreasonable application of clearly established Supreme Court precedent; or (3) was based on an unreasonable determination of the facts in light of the record before the state court. See Harrington v. Richter, 562 U.S. 86, 97-98 (2011).

The statutory provision requires federal courts to be deferential to habeas corpus decisions on the merits by state courts. Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002); Renico v. Lett, 559 U.S. 766, 773 (2010). Furthermore, a state court's factual findings are entitled to deference and are presumed correct unless the petitioner rebuts those findings with clear and convincing evidence. Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010); Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006); Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001); see also Moore, 313 F.3d at 881 (the statutory provision requires federal courts to be deferential to habeas corpus decisions on the merits by state courts). This deference extends not only to express findings of fact, but also to any implicit findings of the state court. Garcia, 454 F.3d at 444-45 (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005)). Where, as here, “the state habeas court and trial court are one in the same,” the presumption of correctness afforded the state habeas court's factual determinations is “especially strong.” Mays v. Stephens, 757 F.3d 211, 214 (5th Cir. 2014) (citations omitted).

A decision by a state court is “contrary to” the Supreme Court's clearly established law if it “applies a rule that contradicts the law set forth in” the Supreme Court's cases. Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A federal court's review of a decision based on the “unreasonable application” test should only review the “state court's ‘decision' and not the written opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). “Under § 2254(d)(1)'s ‘unreasonable application' clause, then, a federal habeas corpus court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411. Rather, that application must be objectively unreasonable. Id. at 409. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree'” on the correctness of the decision. Richter, 562 U.S. at 87 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

“In Texas writ jurisprudence, usually a denial of relief rather than a ‘dismissal' of the claim by the Court of Criminal Appeals disposes of the merits of a claim.” Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); see also Henderson v. Cockrell, 333 F.3d 592 598 (5th Cir. 2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (holding a “denial” signifies an adjudication on the merits while a “dismissal” means the claim...