Brown v. Livingston, No. 4:2015cv03501 - Document 16 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 12 MOTION for Summary Judgment with Brief in Support. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
Download PDF
<![CDATA[
Brown v. Livingston Doc. 16 United States District Court Southern District of Texas ENTERED IN THE UN ITED STATES DISTRICT COURT FOR THE SOUTHERN D ISTRICT OF TEXAS HOUSTON DIVISION June 15, 2016 David J. Bradley, Clerk CLAQENCE M . BROWN , TDCJ #1848847, Petitioner , CIVIL ACTION NO . H-15-3501 LORIE DAV IS, Director , Texas Department of Crim inal Justice , Correctional Institutions Division , Respondent .l M EMO RAN DUM O P IN ION AN D ORD ER Clarence M . Brown , an inmate in Criminal Justice-correctional the Texas Department of Institutions Division , filed a Petition for a Writ of Habeas Corpus by a Person in State Custody C' petitionz ( ') Docket Entry No. challenging the validity of his conviction for assault from the 230th Judicial District Court of Harris County , Texas . Pending before the court is the Respondent's Motion for Summary Judgment with Brief in Support (uRespondent's MSJ' ( ') Docket Entry No. to Response to Order Brown has filed Petitioner's Traverse Show Cause (upetitioner's Traverse/ ') ( Docket Entry No . 15), and the state court records have been l Effective May 1 , 2016, Lorie Davis has succeeded William Stephens as Director of the Texas Department of Criminal Justice Correctional Institutions Division . Accordingly , Davis is automatically substituted as the respondent pursuant to Rule 25 ( d) of the Federal Rules of Civ il Procedure . Dockets.Justia.com submitted for rev iew . The court concludes that Brown is not entitled to federal habeas relief and will grant Respondent's Motion for Summary Judgment for the reasons exp lained below . 1. Procedural History In Harris County cause number 1355968 Brown was charged by indictment with the felony offense of assault of a person with whom the defendant had a dating relationship with a prior conviction for assault against a family member .z The jury found Brown guilty as charged and sentenced him to a term of imprisonment of forty years . 3 On direct appeal Brown argued that there was insufficient evidence to support his conviction .4 He also argued that his conv iction was hvoid' because there was no written verdict in the ' record. The Fourteenth Court of Appeals of Texas rejected Brown's s arguments and Criminal affirmed his Appeals refused conviction .6 Brown 's The Texas Court of petition for discretionary rev iew .? zlndictment , Docket Entry No . 11-21, p . 3ludgment of Conviction by Jury , Docket Entry No . 11-21 , p . 64 . 4 Appellant's Brief, Docket Entry No . 11-1, p . 8 . 5Id . C Memorandum Opinion , Brown v . State, No . 14-13-00258-CR , 2014 WL 2039853 ( Tex . App . -- Houston ( 14th Dist .l May 15, 2014, pet. ref'd) PA Memorandum Opinion' , Docket Entry No . 11-10. o R rown v B 2014). . State, PDR No . 0625-14 ( Tex . Crim . App . July 23, On June 2015 , Brown filed a state application for habeas relief challenging his conv iction .8 claimed that he was entitled In this application Brown relief because he was denied effective assistance of counsel on appeal . On October 2014 , the Texas Court of Criminal Appeals den ied relief without a written order based on the findings of the trial court .g 2015 , Brown filed a petition for s federal On November writ of habeas corpus pursuant to 28 U .S .C . 5 2254 . Brown seeks habeas relief for the same reasons presented on direct appeal and state collateral review . A rguing that these claims are without merit, the respondent moves for summary judgment. II . A. Standard of Review Summ ary Judgment Summary judgment is appropriate if the movant establishes that there is no genuine dispute about any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56( a). Disputes about material facts are 'genuine' if the evidence is such ' ' that a reasonable jury could return a verdict for the nonmoving party . ( 1986). Anderson v . Liberty Lobby , Inc w 106 S . 2505 , 2511 The Supreme Court has interpreted the plain language of Rule 56( to mandate the entry of summary judgment uafter adequate c) B Application for a Writ of Habeas Corpus , Docket Entry No . pp . S-l2 . g Action Taken , Docket Entry No . 11-20 , p . 1 . time for discovery and upon motion , against a party who fails to make a showing sufficient to establish the existence of an element essential to that party 's case , and on which that party will bear the burden of proof at trial .' ' Celotex Corr . v . Catrett, 1O6 S. Ct. 2548, 2552 ( 1986). A party moving for summary judgment umust ' demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant 's case .' Little v . Licuid A ir CorD ., ' 37 F. 1069, 1075 ( 3d 5th Cir. 1994) ( per curiam) ( quoting Celotex, 106 at 2553). the moving party meets this burden , Rule 56( requires the nonmovant to show that specific facts exist c) over which there is a genuine issue for trial. Celotex, 106 at 2553-54) Id. ( citing In reviewing the evidence 'the ' court must draw a1l reasonable inferences in favor of the nonmov ing party , and it may not make credibility determ inations or weigh the evidence .' Reeves v . Sanderson Plumbinq Products , Inc ., ' 2097, 2110 ( 2000) B. Presum ptions Applied in Habeas Cases U .S .C . 5 2254 , as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (' % AEDPA' '), provides ' t)he 'E statutory authority of federal courts to issue habeas corpus relief for persons in state custody .' Harrinqton v . Richter, 131 S . Ct . ' 770, 783 ( 2011). When considering a summary judgment motion the court usually resolves any doubts and draws any inferences in favor of the nonmoving party . Reeves , 12O S . Ct . at 2110. However, the amendments to 28 U .S .C . 5 2254 contained in the AEDPA change the way in which courts consider summary judgment in habeas cases. In a habeas proceeding 28 U.S. C. 5 2254( e) findings of fact made by a state court are mandates that npresumed to be correct.' This statute overrides the ordinary summary judgment ' rule . Smith v . Cockrell, F.3d 668 ( 5th Cir . 2002) ( overruled on other grounds by Tennard v . Dretke, l24 S . Ct. 2562, 2565 ( 2004)). Therefore, a court will accept any findings made by the state court as correct unless the habeas petitioner can rebut the presumption of correctness Bby clear and convincing evidence .' ' 28 U.S. 5 2254 ( C. e)(1). The provisions 5 2254 ( set forth a 'highly deferential d) ' standard for evaluating state-court rulings .' Lindh v . Murphy , ' S. Ct. 2059, 2066 n . ( 7 1997). A federal court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court proceeding : ( 1) resulted in a decision that was contrary to, or involved an unreasonable app lication of, clearly established Federal law , as determined by the Supreme Court of the Un ited States ; or ( 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding . 28 U . C. 5 2254 ( S. d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of 1aw or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts . Taylor, 120 S. Ct. 1495, 1519-20 ( 2000). William s v . A decision is an unreasonable app lication of clearly established federal 1aw the state court identifies the correct governing legal principle but unreasonab ly applies that principle prisoner 's case .' ' Id . at 1523 . to the facts of the In rev iewing a state court's determination regarding the merit of a petitioner's habeas claim , a federal court cannot grant relief if 'fairminded jurists could ' disagree on the correctness of the state court 's decision .' ' Richter, 13l S. Ct. at 786 ( internal quotation marks omitted) 111 . Analvsis As grounds for relief, Brown alleges ( insufficient evidence 1) to prove his prior conv iction , that he was den ied the effective assistance of counsel on appeal, and ( the conviction was void 3) for lack a written verdict x o The Respondent argues that the Petition should be dismissed because uBrown 's claims are meritless and cannot satisfy the AEDPA standard of rev iew .' l 'l In response , Brown reasserts his three grounds for relief without advancing arguments either support of claim s or in opposition Respondent's MSJ .l2 lo Brief in Support of Petitioner's 2254 Federal Writ of Habeas Corpus, Docket Entry No . 2, pp . 2-5 . ll Respondent 's MSJ , Docket Entry No . 12, p . 1 . Hpetitioner 's Traverse , Docket Entry No . 15, pp . 8-11 . A. Insufficient Evidence Brown alleges that the evidence presented at trial was insufficient to prove that he had a prior felony conviction for an assault against a family member . reviewing a claim of the sufficiency of evidence to support a criminal conviction , the court must inquire whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt . Jackson v . Virqinia , S. Ct. 2781 ( 1979) view ing the ev idence The relevant question in the light most whether, after favorable the prosecution , any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt . See i;. at 2788-2789; West v . Johnson, F . 1385, 3d ( 5th Cir. 1996) The Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determ ination , but whether the trier fact made a rational decision to convict or acquit . Jackson , at 2781 . This standard recognizes the duty of the jury to resolve conflict in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts . See Jackson , S . Ct . at 2789 . This standard of rev iew is applicable to direct or circumstantial evidence . Id . at 2792 . See also Pate v . Wainwright, 6O7 F. 2d 669, 670 ( 5th Cir. 1979) ( per curiam) . The court umu st refer to the substantive elements of the criminal offense as defined by state law' to assess the su fficiency ' the evidence. Weeks v . Scott, F.3d 1059, 1062 ( 5th 1995). Texas Penal Code 5 22.01, the statute under which Brown was conv icted , states that a person is guilty of assault Intentionally , knowingly , or recklessly he : causes bodily injury to another, including the person 's spouse ; Intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or ( 3) Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative . The offense for assau lt is enhanced to a third-degree felony if the defendant has a prior conviction for assaulting a member of his family or household. Tex . Penal Code Ann . 5 22.01 ( b). Brown alleges that the State presented sufficient evidence to support his conviction of a misdemeanor assault , but did not present sufficient ev idence to prove the prior felony conviction for assault of a fam ily member to enhance his conviction to a third-degree felony x 3 Brown raised this claim on direct appeal from his conviction x 4 The Fourteenth Court of Appeals held that the State presen ted sufficient ev idence to prove beyond a reasonable doubt that Brown had a prior conv iction for assault of a family memberxs trial the State introduced the judgment of the prior assault of a fam ily member and the sentence from cause number 1108537 and connected Brown to the prior conviction through Hpetition , Docket Entry No . MAppellan t's Brief, Docket Entry No . p . 8. HMemorandum Opinion , Docket Entry No . 11-10, p . - 8- the testimony of Deputy Roy Glover x 6 Deputy Glover testified that Brown's fingerprints matched fingerprints on the previous judgment, reflecting that he had a prior conviction for assault on a fam ily memberx? The Fourteenth Court of Appeals held that the fingerprint analysis was sufficient to support the jury's findings that Brown had a prior conviction for assau lt against a family member, relying on Varnes v . State, 63 S. . 824, W 3d ( Tex . App . Houston ( 14th Dist.q 2001, no pet.). When a state appellate court has reviewed the issue of sufficiency of evidence , a federal habeas corpus court gives great weight to their determination . Duff-sm ith v . Collins , 933 F.2d 1175, 1184 ( 5th Cir. 1992). The court's independent review of the record demonstrates that the testimony of Deputy Glover and Brown 's own testimony about his prior convictions are sufficient to support the jury's finding that Brown had a prior conv iction for assault against a family member x 8 View ing the evidence under the Jackson standard in the light most favorable to the prosecution , the evidence presented at trial is sufficient to satisfy a reasonable trier of fact that Brown was guilty of the prior felony enhanced his conviction . assault of a family member which The court concludes that Brown is not l 6Id . at 2 -3 . 1 Id 7 l Reporter 's Record , vol. 8 Docket Entry No . 11-13, pp . 91- 10 1 . - 9- entitled to habeas relief on h is claim that the evidence is insufficient to support his prior conviction . B. Ineffective Assistance of Counsel Brown claims that he received ineffective assistance of counsel on appealxg A claim of ineffective assistance of counsel is governed by the test set out in Strickland v . Washington , 1O4 Ct. 2052, 2064 (1984), which requires the defendant to establish b0th constitutionally deficient performance and actual prejudice. To establish that appellate counsel's performance was deficient the context of an appeal, the defendant must show that his attorney was objectively unreasonable in failing to find arguable issues to appeals that is, that counsel unreasonably failed to discover non -frivolous issues and raise them . Smith v . Robbins, 746, 764 ( 2000). If the defendant succeeds in such a showing then he must establish actual prejudice by demonstrating a ureasonable probability' that, but for h is counsel 's deficient performance , nhe ' would have prevailed on his appeal .' ' Id . The right to counsel on appeal udoes not include the right to bring a frivolous appeal and , concom itantly , does not include the right to counsel for bringing a frivolous appeal .' ' Robbins, 12O S . Ct . at 760 . Appellate counsel is not deficient for not raising every non -frivolous issue on appeal. l gpetition , Docket Entry No . United States v . Reinhart, 357 F.3d 521, 524 Williamson , to raise ( 5th Cir. 2004) ( citing United States v . F .3d 458 , an issue on ( 5th Cir. 1999)). Counsel's failure appeal will be considered deficient performance only when that decision ' fallsq below an objective 'E standard of reasonableness .' ' Id . This standard requires counsel ' 'to research relevant facts and law , or make an informed decision that certain avenues will not prove meritoriou s arguments based on fruitful .' ' directly Id . 'Solid , ' controlling precedent should be discovered and brought to the court 's attention .' Id . at ' 463 . Brown standard . does not satisfy either element of the Strickland response to Brown 's state habeas application the state court held that there were no unresolved facts material to the legality of Brown 's confinement and recommended that the relief requested be denied pertaining to his claim of ineffective counsel on appeal based on the following findings of fact and conclu sions of law : The applicant fails to provide any particular point of error that appellate counsel failed to raise , and that there is a reasonab le probability that, but for counsel's failure to raise a particular issue , he would have prevailed on appeal . The applicant fails to prove that the representation he received was insufficient to protect his right to reasonably effective assistance of counsel . The applicant fails to estab lish that there was a reasonable probab ility that, but for appellate counsel's purported deficient conduct , he would have prevailed on direct appeal . The totality of the representation afforded the applicant by appellate counsel , Jerald K . Graber was sufficient to protect h is right to reasonab ly effective assistance of counsel in the primary C a s e . 20 The Texas Court of Criminal Appeals denied relief withou t a written order based on these findings .z l Brown's counsel did not fall below an objective standard of reasonableness . Brown claims that his appellate attorney failed to investigate the facts of the case and the trial court record , and failed to challenge the legal and factual sufficiency of the ev idence .z z Brown argues that both points of error raised by his appellate counsel were frivolous because counsel did not assert specific grounds for reversal and failed to present legitimate issues for appellate review on direct appeal.2 3 However , Brown 's counsel rev iewed the entire appellate record and the applicable law and presented two points of error on appea1.24 Appellate counsel does not have raise every claim on appeal; rather , appellate counsel should examine the record to select the most promising issues for rev iew . Jones v . Barnes, 103 z gstate's Proposed Findings of Fact , Conclu sions of Law and Order, î! 4-7, Docket Entry No. 11-21, p. 47. z Action Taken , Docket Entry No . 11-20, p . 1 . l z zpetition , Docket Entry No . 2 Brief in Support of Petitioner 's 2254 Federal Writ of Habeas 3 Corpus , Docket Entry No . 2 , p . 6 . MAppellant 's Brief, Docket Entry No . 11-1 , p . S. Ct. 3308, 3313 ( 1983). Here, Brown's counsel focused on two key issues, insufficiency of ev idence and the lack of a written verdict within the appellate record .25 Brown has not shown that there were any non -frivolous issues that were clearly stronger than those presented. See Robbins, 120 S . Ct . at 765 ( quoting Gray v . Greer, 8OO F.2d 644, 646 (7th Cir . 1985) (uonly when ignored issues are clearly stronger than those presented , will the presumption of effective assistance of counsel be overcome' ). o Mere conclusory allegations in support of a claim of ineffective counsel are insufficient to raise a constitutional issue . See Ross v . Estelle, 694 F. 2d 1008, 1012 ( 5th Cir. 1983) ( per curiam). Therefore, he has failed to show that counsel's performance was deficient . Likewise, Brown also fails to demonstrate the requisite prejudice. Brown does not otherwise show that the state habeas corpus court's decision was unreasonable . Therefore , Brown is not entitled to relief on th is claim . C. Judgment of Conviction Void for Lack of Written Verdict Brown alleges that the judgment of conviction is void because the Clerk 's Record filed in this case did not contain the written verdict by the jury documenting Brown's guilt and his sentence of forty years . The Fourteenth Court of Appeals held that this claim was w ithout merit because a Supplemental Clerk 's Record was filed , which contained a written verdict of gu ilt and sentence of forty a t 1 0-13 . years, 50th signed by the foreperson of the jury.6 Because the 2 record supports this determinationz ? Brown's claim is meritless. Because Brown has failed to establish a valid claim relief, the court will grant Respondent's Motion for for Summary Judgment and dismiss this case . IV . Certificate of Appealability The Petition filed in this case is governed by the AEDPA , codified at 28 U .S .C . 5 2253, which requ ires a certificate appealability to issue before an appeal may proceed . See Hallmark v. Johnson , F.3d 1073, 1076 ( 5th actions filed under either 28 U .S .C . certificate appealability) Rule 1997) ( noting that 2254 or 2255 require a of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner . certificate of appealability will not issue unless the petitioner makes a usub stantial constitutional rightz' 28 U.S. ' C. showing of 2253 ( 2) c)( the denial of a which requires a petitioner to demonstrate uthat reasonable jurists would find the district court 's assessment of the constitutional claim s debatable MMemorandum Opinion , Docket Entry No . 11-10 , p . z 7supplemental Clerk 's Record, Verdict , Docket Entry No . 11-17, p . l1; and verdict ( Choose One), Docket Entry No. 11-17, p. 17. - 14 - or wrong .' Tennard, 124 S. Ct. at 2565 ( ' quoting Slack, l20 S. Ct. at 1604). Under the controlling standard this requires a petitioner to show 'that reasonable jurists could debate whether ' ( or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ' adequate to deserve encouragement to proceed further .'' ' Miller-El, 123 S . Ct . at 1039 . Where denial of relief is based on procedural grounds, the petitioner must show not only that ujurists reason would find it debatab le whether the petition states a valid claim of the denial of a constitutional right ,' but also that ' they uwould find debatable whether the district court was correct in its procedural ru ling .' Slack , 120 S . Ct . at 1604 . ' district court may deny a certificate of appealability , sua sponte , without requiring briefing or argument . See Alexander v. Johnson, F. 3d 895, 898 ( 5th Cir . 2000). For reasons set forth above, this court concludes that jurists of reason would not debate whether the petitioner states a valid claim for relief. Therefore , a certificate of appealability will not issue . V. For the reasons Conclusion and Order explained above , the court ORDERS following : Respondent's Motion for Summary Judgment ( Docket Entry No . 12) is GRANTED . - 15 - the Clarence Brown 's Petition for a Writ of Habeas Corpus By a Person in State Custody ( Docket Entry No. 1) is DENIED, and this action will be dismissed with prejudice. A certificate of appealability is DENIED . SIGNED at Houston, Texas , on this the 15th day of June , 2016 . e A SIM L AKE UNITED STATES DISTR ICT JUDGE - 16 -
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
