Jones v. Davis, No. 4:2018cv03284 - Document 21 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 12 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus; denying 16 MOTION for an Evidentiary Hearing. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Jones v. Davis Doc. 21 United States District Court Southern District of Texas ENTERED April 22, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION David J. Bradley, Clerk W ILLIAM MONTERIAL JONES , TDCJ #1971347, Petitioner , CIV IL ACTION H -18-3284 LORIE DAV IS, Director , Texas Department of Criminal Justice - Correctional Institutions D ivision, Respondent . MEMODAMDUM OPINION AND ORDER W illiam Monterial Jones has filed a Petition for a Writ of Habeas Corpus By a Person Entty state Custody (npetition'') (Docket seeking relief under 28 U .S .C . 22 54 from two convictions entered against him in Harris County , Texas . Pending before the court is Respondent Lorie Davis's Motion to Dismiss With Brief in Support CARespondent's Motion'') (Docket Entry No. arguing that his claims are procedura lly barred . In response , Jones has filed Petitioner 's Request for an Evidentiary Hearing With His Suggestions in Support (Docket Entry No . Jones has also filed Petitioner 's Traverse to Response to Order to Show Cause ('rpetitioner's Traverse'') (Docket Entry No. 19), which includes Supporting Exhibits (Docket Entry After considering a1l of the pleadings, the state court record , and the applicable law , the court will grant Respondent's Motion and will dism iss this action for the reasons explained below . Dockets.Justia.com 1. Backcround A grand jury in Harris County, Texas, returned two indictments against Joneù in Case Nos . 1387546 and 1387547 , charging him w ith aggravated robbery with a deadly weapon , namely a firearm , and unlawful possession of a firearm as indictments were enhanced for felon , respectively x purposes punishment Both with allegations that Jones had at least two prior felony convictions for robbery and for unlawful possession of a weapon as a felon . On December 2014, a jury in the 351st District Court for Harris County , Texas, found Jones guilty as charged in b0th indictments .z A fter Jones acknowledged that the enhancement allegations were ''true ,'' the trial court sentenced him to concurrent 40-year terms of imprisonment in both cases .3 On direct appeal, Jones argued that the ev idence was legally insufficient to support a guilty verdict because the State failed to prove identity as the perpetrator of the armed robbery llndictment in Case No . 1387546, Docket Entry No . 13-2, p . 1O; Indictment in Case No . 1387547, Docket Entry No . 13-3, p . l0. For purposes of identification , a1l page numbers refer to the pagination imprinted by the court's electronic filing system , CM/ECF. zcourt Reporter 's Record , vol. 5, Docket Entry No . 13-8 , p . l3 . 3court Reporter 's Record , vol . 6 , Docket Entry No . 13-9, pp . 4-10; Judgment of Conviction by Jury in Case No . 1387546, Docket Entry No . 13-2, p . 134 : Judgment of Conviction by Jury in Case No . 1387547, Docket Entry No . 13-3, p . 126 . beyond a reasonable doubt .4 He also argued that the trial court erred by admitting speculative testimony from an investigator . s The intermediate court of appeals rejected both arguments and affirmed the conviction after summarizing the evidence presented against Jones at trial as follows : On the evening of September 23 , 2012, Mohammad Aman , the complainant , and Nagy Aly were working at Mo 's Food Mart when the store was robbed . Aman , the cashier, testified that a tall b lack male entered the convenience store , jumped onto the front counter behind the protective glass , shot Aman in the arm , and told him , nOkay . Now you 're going to give me the money .'' Aman testified that the man was wearing a do-rag over his face , a t-shirt, and dark -colored pants . As Aman began to open the cash register, A ly , who had been working in the back of the store , approached the counter with his gun and told the assailant to drop his weapon . Aman testified that Aly shot the robber as he fled the store . Paramedics transported Aman to the hospital where a police officer took his statement . The officer then accompanied Aman to another hospital room to see if he could identify the man there as the robber . Aman told the officer that the man in the room was not the robber . On the night of the robbery , A ly , the night Stocker, heard someone near the cash register demand money from Aman . When Aly approached the front of the store , he saw a man behind the register with Aman . The robber saw Aly 's gun and fired a shot at h im . Aly then fired six shots at the man as he fled the store . A ly testified that as he was standing at the front door, he saw the robber run into the store 's parking lot , fall down , and drop a hat and mask . A1y identified the hat and do-rag shown in State 's Exhibits 15 and 16 as the hat and mask he saw the robber drop while fleeing . A1y did not identify the man in the hospital room as the robber . 4Appellant 's Brief, Docket Entry 5Id . 13 -11, at 8 . Deputy Langston Smart, with the Harris County Constable 's Office , was dispatched to the convenience store following the robbery . After securing the scene , Deputy Smart collected a baseball cap and do -rag found in the parking lot outside the store . Deputy Smart also interviewed Aman and A ly who told him that the perpetrator was a thin , black male who had worn a do-rag over his face . Although the store had security cameras , they were not working on the night of the robbery . Investigator Zachary Long , with the Robbery Div ision of the Harris County Sheriff 's Office , was assigned as the lead investigator in the case ./) Investigator Long went to Northwest Medical Center and interviewed Aman who told him that the robber , a b lack male , wore dark clothing , a ball cap , and a black c10th covering his face . Investigator Long then interviewed appellant who had been admitted with gunshot wounds to the same hospital . Appellant told him that he had been driving his car , a white Crown Victoria , when another vehicle ran him off the road at Airtex Boulevard near Interstate 45, and that the occupants shot at him while he ran away . He also told Investigator Long that he subsequently returned to h is car and drove to his girlfriend's house . Investigator Long testified that , based on his years of experience , appellant's version of events , and the fact that appellant arrived at the hosp ital dressed only in a t-shirt , white boxer shorts, and socks , he did not find appellant 's statement credible . Investigator Long testified that he took Aman into appellant's hospital room but that Aman told him appellant was not the robber . Investigator Long stated that Aly likewise did not identify appellant as the robber . Investigator Long also interviewed Dominique Sampson , the person who brought appellant to the hospital . Sampson told Investigator Long that he had received a call from a friend asking him to pick up a friend who had been shot, and that he p icked appellant up at a Popeye 's Chicken restaurant off of Airtex and took him to the hospital . According to Sampson , appellant did not say anything during the ride to the hospital and only moaned . Investigator Long learned that a 1995 white Crown Victoria was later found abandoned in a moving lane of traffic near A irtex . 6At the time of trial, Investigator Long had worked in law enforcement for twenty -six years . Lieutenant Anthony Mcconnell, with the Crime Scene Unit of the Harris County Sheriffs Office, conducted a gunshot residue test on appellant and obtained a voluntary buccal swab from him for purposes of DNA analysis . The results of the GSR test were negative . Christy Smejkal, a DNA analyst with the Harris County Institute of Forensic Sciences, compared the DNA profiles from the baseball cap and the do-rag discovered in the store 's parking 1ot to appellant's DNA profile obtained from his buccal swab . She testified that the DNA resu lts from the do-rag revealed a mix ture of DNA from two individuals, and that appellant was the major contributor. Smejkal further testified that the DNA profile from the baseball appellant 's DNA profile . cap was consistent with Jones v . State , Nos . Ol-14-O1-32-CR , 01-14-01033-CR , 2016 (Tex . App . 672842, at WL Houston (1st Dist.) Feb . 18, 2016) (footnote renumbered from originall.; On July 27, 2016, the Texas Court of Criminal Appeals denied his pro qq petition for discretionary review .8 Jones challenged his convictions by filing an App lication for a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under ETexas) Code of Criminal Procedure, Article 11 .07 (uApplicationd') with the trial court .g In his Application , Jones raised the following claims : There was uno evidence'' to support his conviction . He was denied effective assistance of counsel when his defense attorney failed to (a) file a pretrial motion to suppress the DNA test results, (b) investigate his medical records, and (c) request the assistance of a DNA expert witness . VMemorandum Opinion , Docket Entry No . 13-60, pp . 44 -57 . SNotice , Docket Entry No . 13-24 , p . gApp lication, Docket Entry No . 13-56, pp . 6-22 . 3. He was denied effective assistance of counsel on appeal when his appellate attorney failed to raise ineffective -assistance claims against his trial counsel x o The trial court entered findings of fact and concluded that Jones was not entitled to relief x l The Texas Court of Criminal App eals remanded the case for additional findings of fact on the claim that defense counsel failed to condu ct an adequate investigation of the medical records, noting that Jones presented an affidavit from a nurse named Kelly Russell, who stated that Jones could not have run any distance due to his injuries, implying that he was not the perpetratorxz After obtaining additional briefing on this claim , the trial court found that the affidavit submitted by Jones was falsified x 3 The State presented an affidavit from Ms . Russell , stating that she did not prepare or sign the prev ious affidavit submitted by Jones , that she had no personal knowledge about h is medical condition , and would losee id . at 11-16 . llstatefs Proposed Findings of Fact , Conclusions of Law , and Order (nFindings and Conclusions''), Docket Entry No. 13-60, pp . 2530 . lzorder, Docket Entry No . 13 -55, pp . Docket Entry No . 13-55 , pp . 20-21 . See Affidavit, H state's Proposed Findings of Fact, Conclusions of Law, and order After Remand ('AFindings and Conclusions After Remand'o , Docket Entry No . 13-55 , p . 30. not have been qualified to testify if she had been subpoenaed as a witness .l4 On August 22, 2018, the Texas Court of Criminal Appeals dism issed the Application , citing Jones for abuse of the writ . 15 a written opinion issued in connection with that order , the Texas Court of Crim inal Appeals found that Jones abused the writ by submitting false ev idence and that he hwaived and abandoned any contention'' in connection with his claims for relief as a result : In his present application , Applicant contends , among other things, that his trial counsel rendered ineffective assistance because counsel failed to present medical records and interv iew and subpoena medical staff to show that Applicant was severely injured and would have been unable to run from the crime scene . This app lication , however , presents a more serious question . Applicant alleges that medical personnel was availab le to testify on Applicant's behalf . Applicant has prov ided an affidav it, purporting to be from a nurse, Kelly Russell, who states that Applicant could not have run any distance due to his injuries. However , Kelly Russell has filed an affidavit and denies preparing or signing the affidav it, stating that she is not a nurse, that she does not, in the course of her employment , draft affidavits prov iding medical analysis or provide expert opinions regarding m edical conditions of patients, and that she does not have any personal knowledge of Applicant's medical condition , nor is she qualified to testify about his medical treatment . Based on these statements, the trial court has found that Kelly Russell did not prepare or sign the affidavit submitted by App licant in the instant writ application . Therefore , the affidavit was falsified and/or was wholly the product of Applicant because said affidav it was not authored , executed , or signed by the purported affian t . l4A ffidavit of Kelly Russell , Docket Entry No . 13-55 , pp . l819 . lsAction Taken , Docket Entry No . 13-52 , The writ of habeas corpus is not to be lightly or easily abused. Sanders v . U .S., 373 U .S. 1 (1963); Ex parte Carr, 5ll S.W .2d 523 (Tex . Crim . App. 1974). We find that Applicant has abused The Great Writ by submitting false evidence . We deny relief on this application and cite him for abuse of the writ . By that abuse , Applicant has waived and abandoned any contention that he m ight have in regard to the instant conv iction , at least insofar as existing claim s that he could have or should have brought in the application . Ex parte Jones, 97 S.W .3d 586 (Tex . Crim . App . 2003)7 Middauqh v . State, 683 S .W .2d 713 (Tex . Crim . App . 1985); Ex pa -rte Emmons, 660 S.W.2d 1O6 (Tex . Crim . App . 1983). Additionally, based on Applicant's submission of false evidence , we find that Applicant has filed a frivolous lawsuit . Therefore, we instruct the Clerk of the Court of Criminal Appeals not to accept or file the instant applications for writ of habeas corpus , or any future application pertaining to these convictions unless Applicant is able to show in such an application that any claims presented have not been raised previously and that they could not have been presented in a previous application for a writ of habeas corpus. Ex parte Bilton, 6O2 S.W .2d 534 (Tex . Crim . App . 1980). Ex Darte W illiam Monterial Jones, WR-85,603-03, 2018 WL 7502670, *1 (Tex. Crim . App . Aug. 2018) (per curiam). Jones now contends that he is entitled to federal habeas relief from conviction under U.S.C. 2254 (d). Jones raises the same claims that he presented on state habeas corpus review , w ith the addition of a claim that his trial attorney was ineffective for failing to object to a prejudicial remark by the prosecutor x 6 Noting that the Texas Court of Criminal Appeals dism issed his state habeas Application for h is abuse of the writ, lEpetition , Docket Entry No . 1, pp . 6-8 . Because Jones is a pro 44 litigant , the court has construed all of his subm issions under a less stringent standard than those drafted by lawyers . See Haines v . Kerner, 92 S. Ct. 594, 596 (1972) (per curiam) - 8- the respondent argues that federal review of his claims is barred by the doctrine of procedural default x ? II . Standard of Review The federal habeas corpus standard of review requires a petitioner to first present h is claims in state court and to exhaust al1 state court remedies through proper adjudication. See 28 U .S.C. 5 2254 (5) To satisfy the exhaustion requirement the petitioner must present his claims to the highest state court in a procedurally proper manner so that the state court is given a fair opportunity to consider and pass upon challenges to a conviction before those issues come to federal court for habeas corpus review . See, e.q., O'Sullivan v . Boerckel, 1728, (1999) (explaining that comity dictates that state courts should have the first opportun ity to review a claim and provide any necessary relief). When a state court declines to address a prisoner's federal claims because he has failed to meet a state procedural requirement , or state remedies are otherwise rendered unavailable by a prisoner 's own procedural default , federal courts are barred from reviewing the claims . See Coleman v . Thomp son , 2546 (1991)7 Sones v. Harqett, 61 F.3d 410, 416 (5th Cir . 1995) l7Respondent 's Motion , Docket Entry No . 12, pp . 4 -6 . 111 . Discussion A. Federal Review is Procedurally Barred As noted above, the Texas Court of Criminal Appeals denied the Application for state habeas corpus relief filed by Jones after finding that he abused the writ by submitting false evidence . The respondent argues , therefore , that federal rev iew of the claims found in his state court App lication is barred by the doctrine of procedural default x 8 Noting further that Jones attempts to add a claim for ineffective assistance of counsel that was not raised previously on state court review (regarding his defense counsel's failure to object to a prejudicial comment by the prosecutor) the responden t argues that this claim is also procedurally barred by the Texas abuse-of-the-writ doctrine because Jones cannot now return to court to raise this unexhausted c1aim .l9 The Supreme Court has emphasized that, under the doctrine of procedural defau lt , ''federal courts will not review questions of federal 1aw presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment.'' Cone v. Bell, 129 S. Ct. 1769, 1780 (2009) (citation and internal quotation marks omitted). It is well established that ''ETexas' abuse-of-thewrit) doctrine is a valid state procedural bar foreclosing federal l8Respondent's Motion , Docket Entry No . l9ld . at 5-6 . 99 . 4-6 . habeas review.'' Moore v . Quarterman, 534 F.3d 454, 463 (5th 2008) (quoting Coleman v . Quarterman, 456 F.3d 537, 542 (5th Cir. 2006)); see also Hughes v . Quarterman, 530 F .3d 336, 342 (5th Cir . 2008) (''EThe Fifth Circuitl has held that, since 1994, the Texas (abuse-of-the-writ) doctrine has been consistently applied as a procedura l bar, and that is an independent and adequate state ground for the purpose of imposing a procedural bar.'') (citations omitted). Thus, the dismissal of Jones' state habeas application as an abuse of the writ constitutes an independent ground that is adequate to bar federal review . Because Jones cannot now return to state court to raise his unexhausted ineffective-assistance claim concerning his attorney's failure object to a prejudicial comment by the prosecutor, this also qualifies as a default that bars federal review . (5th See Nobles v . Johnson , 127 F .3d 409, 422-23 1997) (citation omitted). In his response to Respondent 's Motion Jones appears to argue that he did not comm it a defau lt for abuse of the writ because the second affidavit from Kelly Russell that was provided by the State , in which she disavowed executing the affidavit prov ided initially by Jones, was l'not true .''20 The Texas Court of Criminal Appeals found as a matter of fact, however , that the affidav it tendered by Jones in support of his state habeas Application was false . KE parte W illiam Monterial Jones , WR-85,603-03, 2018 WL 7502670, at *1 zgpetitioner 's Traverse , Docket Entry No . pp . 11-14 . (Tex . Crim . App . Aug . 22, 2018) (per curiam). A state Court's factual determinations are entitled to deference on federal habeas corpus review . Findings of fact are ''presumed to be correct'' unless the petitioner rebuts those findings w ith uclear and convincing evidence.'' 28 U.S .C. 5 2254 (e) (1). Jones has presented a variety of exhibits consisting of medical records, notes, and other documents from his defense attorney 's file .2l However , Jones does not present any proof, much less clear and convincing evidence , show ing that the state court's finding that he submitted a falsified affidavit was incorrect . His abuse of the writ, therefore , constitutes a procedural default that bars review of the claims that he raised on state habeas corpus review unless he fits within an exception . If a petitioner has committed a procedurai default, federal habeas corpus review is available only he can demonstrate : (l) ucause for the default and actual prejudice as a result of the alleged violation of federal law ,'' or that ufailure to consider the claims will result in a fundamental miscarriage of justice.'' Coleman v. Thompson, lll S. the 2546, 2565 (1991). To fit within fundamental-miscarriage-of-justice exception, a habeas petitioner who has defaulted his federal claims must show that , as a factual matter , nhe did not commit the crime of conviction .'' nsupporting Exhibits/ Docket Entry No . 20 , pp . 1-97 . Fairman v . Anderson, 188 F.3d 635, 644 (5th Cir . 1999) (citations omitted). Jones does not demonstrate any cause for his default .22 Because Jones has not established cause , his abuse of the writ will be excused only if he can show that federal review of his defaulted claims necessary prevent a fundamental miscarriage justice. See Fearance v. Scott, 56 F.3d 633, of (5th Cir. 1995). This requires evidence that would support a ''colorable showing of factual innocence .'' Kuhlmann v . Wilson, 2616, 2627 (1986). To be credible a habeas petitioner must support a claim of actual innocence with ''new reliable evidence whether it be exculpatory scientific evidence , trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'' Schlup v . Delo, 115 S . 851, 865 (1995). To prevail on such a claim a petitioner must show ïhthat it is more likely than not that no reasonable juror would have convicted him in light of the new evidence .'' Id . at None of the ev idence presented by Jones satisfies the Schlup standard and he does not show that he is actually innocent . Instead , Jones appears to argue that he is innocent because the evidence presented against him at trial was insufficient to 22Jones appears to admit that he fabricated the affidav it from Russell by presenting a statement that she did not prepare or swear to under oath , believing he was authorized to do so . See Unsworn Declaration from Jones, Docket Entry No . 2O, pp . 57-58 (explaining that he used Russell's signature from a blank business records affidavit that he received with copies of his medical records). establish his guilt .23 innocence means This argument fails because nlalctual factual innocence and insufficiency .'' United States v. Jones, 172 F.3d - 1999) (quoting Bouslev v . United States, Ct . 1604, 1611 not mere legal 384 (5th Cir. 623, ll8 S. (1998)). Alternatively, for reasons set forth briefly below , Jones does not demonstrate that the evidence against h im at trial was insufficient establish his guilt beyond a reasonable doub t. Accordingly , the court concludes that his claims are procedurally barred and that Respondent's Motion should be granted . B. Jones ' Challenge to the Sufficiency of the Evidence Jones argues that evidence challenge to the sufficiency should not be considered barred by the the doctrine procedural default .24 He contends that , even though he repeated a similar evidence'' claim that was rejected on state habeas corpus review , he did raise a challenge to the sufficiency of the evidence on direct appeal that was rejected by the Texas Court of Criminal Appeals when it rejected his petition for discretionary review.25 To the extent that the claim was adjudicated on the merits during his direct appeal, Jones has not demonstrated that his challenge to the sufficiency under the standard of review found the evidence merits relief in the Antiterrorism z3petitioner's Traverse , Docket Entry No . M petitioner 's Traverse , Docket Entry 25ggd at pp , 29-34 . and Effective Death Penalty Act of 1996 (''AEDPA'Q , codified at 28 U .S.C . 2254 (d). Under the AEDPA a federal habeas corpus court may not grant relief unless the state court's adjudication uresulted decision that was contrary to, or involved an a unreasonable application of, clearly established Federal law , as determined by the Supreme Court of the United States E.l'' 28 U .S.C. 5 2254 (d) (1). This highly deferen tial standard nwas meant to bar relitigation of claims already rejected state proceedings and to preserve federal habeas review as na îguard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal .'' Harrinqton v . Richter , 131 S . (2011) (quoting Jackson v . Virginia, 2796, n .5 (1979) (Stevens, concurringl) bar , a habeas petitioner required 2781, ''To satisfy this high 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended existing law beyond any possibility for fairminded disagreement.''' Woods, 135 S. Ct. at 1376 (quoting Richter, l31 S. Ct. at 786-87) On habeas corpus review of challenge to the legal sufficiency Jackson v . Virginia , 99 a state court conviction a the evidence governed by 2781 (1979), which reflects the federal constitutional due process standard . See In re W inship , 90 S. Ct. 1068, 1073 (1970) C'ET)he Due Process Clause protects the accused against conv iction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.d'). This standard only requires that a reviewing court determine hwhether, after view ing the evidence in the light most favorable to the prosecution , any rational trier of fact could have found the essential elements doubt .'' Jackson, 99 the crim e beyond a reasonable at 2789 (emphasis in original). The Supreme Court has emphasized hthat Jackson claim s face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.'' Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam) questiqns only whether A federal habeas corpus court state court's assessment of already -strict Jackson standard was unreasonable . 2254 (d ) the See 28 U .S .C . Together , Jackson and the AEDPA require a ''double dose of deference that can rarely be surmounted .'' Boyer v . Bellecue, 659 F.3d 957, 964 (9th Cir. 2011). In conducting its rev iew under this doubly deferential standard, the court looks to the last reasoned state judgment that considered and rejected the petitioner's federal claim. See Y1st v . Nunnemaker , Sellers , 2590, 2594 (1991)7 see also Wilson v . 1188, 1193-94 (2018) That judgment was issued by the intermediate state court of appeals , which set forth the elements of the offense and concluded that there was more than sufficient ev idence to support the conviction : In his first point of error , appellant contends that the evidence is legally insufficient to support his convictions . Specifically , he argues that the State failed to prove beyond a reasonable doub t that he was the perpetrator because (l) no witness identified him ; (2) the DNA evidence from the baseball cap and do -rag was weak because Aman and A ly 's testimony did not connect those items to appellant; and (3) the blood sample recovered from the crime scene excluded appellant , no fingerprints were taken , and the GSR test results were negative . Heré , Aman testified that the robber was wearing a do-rag over his face when he jumped over the counter, shot Aman in the arm , and demanded money . A 1y testified that , after he fired his gun at the assailant , he stood at the front door as he watched the assailant run into the store's parking lot, fall down , and drop a hat and mask in the parking lot . When shown State's Exhibits 15 and 16, Aly identified the hat and do-rag shown in the photographs as the hat and mask he saw the robber drop. Smejkal testified that the DNA test results showed that appellant was the major contributor of the DNA found on the do-rag, and that appellant 's DNA profile was consistent with the DNA found on the baseball cap . Thus, the State presented evidence connecting appellant to the discarded items found in the store's parking 1ot following the robbery . Moreover , the defense offered no alternative explanation as to how appellant's DNA ended up on the do-rag and baseball cap found at the crime scene . See Jones, 458 S.W.3d at 631-32 (finding evidence identifying defendant as robber sufficient where, among other things, no other testimony established connection between defendant and complainant to explain how comp lainant 's DNA profile ended up on clothing that also contained defendant's DNA profile). In addition to the DNA evidence , the State presented other circumstantial evidence supporting the jury's verdicts . A ly testified that he shot at the assailant six times while the assailant fled the store . Shortly after the robbery , appellant arrived at a nearby hosp ital with two gunshot wounds . According to Investigator Long, appellant told him that, after he was carjacked on Airtex Boulevard , he returned to his car and drove to his girlfriend 's house . However , the investigation subsequently revea led that the car was towed as an abandoned vehicle from a moving lane of traffic near Airtex . Sampson also told Investigator Long that he picked appellant up at a Popeye 's Chicken off of Airtex and took him to the hospital . See Currv , 30 S .W .3d at 406 (noting that reviewing courts resolve inconsistencies in evidence in favor of verdict). - 17 - In light of the DNA evidence , appellant 's gunshot wounds , and the discovery of appellant's abandoned car , it was reasonable for the jury to infer that appellant committed the charged offenses . Viewing the evidence in the light most favorable to the verdict, we hold that the State presented sufficient evidence for a reasonab le fact finder to conclude beyond a reasonab le doubt that appellant was the armed robber of Mo 's Food Mart . We overrule appellant's first point of error . Jones v . State , Nos . Ol-14-O1-32-CR , Ol-l4-0lO33-CR , 2016 672842, aù *3-4 (Tex . App . pet. ref/d) Houston (1st Dist .q Feb. l8, 2016, reaching this conclusion the court of appeals expressly followed the legal standard articulated in Jackson for evaluating challenges to the sufficiency of the evidence . See id . at *2 (citing Jackson v . Virqinia, 99 S. Ct . 2781 2789 (1979) (citations omittedl) A s noted by the state court, Jones was identified as the suspect because his DNA was recovered from item s discarded by the perpetrator the scene and he sustained gun -shot wounds consistent with those inflicted by one of the store clerks . None of the evidence offered by Jones refutes any of the state court's findings of fact , which are presumed correct on federal habeas review . 764 , See 28 U.S.C. 2254 (e)(1) Sumner v. Mata, S. (1981) (observing that the presumption of correctness napplies to factual determinations made by state courts , whether the court be a tria l court or an appellate court'o . Under these circumstances , the state court 's well-reasoned op inion is entitled to ''great weight'' on federal habeas review . Parker v . Procunier, 763 F.2d 665, 666 (5th Cir. 1985) (citing Jackson, 99 S. Ct. at 2791, n.15); see also Callins v. Collins, 998 F.2d 269, 276 (5th Cir. 1993) (uWhere a state appellate court has conducted a thoughtfu l review the evidence determination is entitled to great deference .'') To the extent that Jones asks this court to re-weigh the evidence and decide the jury's decision was correct, this type of inquiry exceeds the scope of review permitted under the Jackson standard . See Schlup v. Delo, ll5 Jackson , the assessment of the 851, 868 (1995) (''IU)nder credibility generally beyond the scope of review ./o . of w itnesses is federal habeas corpus court may not substitute its view of the ev idence for that of the fact-finder . See Weeks v . Scott, F .3d 1059, 1062 1995). Under the Jackson standard ''Eaqll credibility choices and conflicting inferences are to be resolved in favor of the verdict .'' Ram irez v . Dretke , omitted) F .3d 695 (5th 2005) (citation Viewing all of the evidence under the doubly deferential standard that applies on federal habeas review , Jones has not shown that the state court's decision was objectively unreasonable or that he is entitled to relief under Jackson . Therefore , Jones is not entitled to federal habeas corpus relief on his claim that the evidence was insufficient to support his conviction . Because his remaining claims are procedurally barred due to his misconduct on state habeas rev iew , the court will grant Respondent's Motion and - 1 9- dism iss this action without considering his ineffective-assistance claim s . Petitioner's Recuest for an Evidentiary Hearinc Jones requests an ev identiary hearing on the merits his claims .26 The decision whether to hold an evidentiary hearing on federal habeas review is governed by 28 U.S.C. 2254 (e) (2) Where an applicant has ufailed to develop the factual basis of a claim in State court proceedings z'' the federal habeas corpus court ushall not hold an ev identiary hearing'' on the claim un less the applicant shows that : (A) the claim relies on a new rule of constitutional law , made retroactive to cases on collatera l review by the Supreme Court , that was previously unavailable ; or a factual predicate that could not have been prev iously discovered through the exercise of due diligence ; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing ev idence that but for constitutional error , no reasonable fact-finder would have found the applicant guilty of the underly ing offense . 28 U .S .C . 2254 (e)(2). Jones fails to show that he is entitled to a hearing under this statute . Accordingly , his request for an evidentiary hearing will be denied . z6petitioner's Request for an Evidentiary Hearing With His Suggestions in Support, Docket Entry No . l6 , pp . 1-11 . - 2 0- V. Certificate of Appealabilitv Rule 11 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 adverse to the petitioner . A certificate of appealability will not issue unless the petitioner makes substantial showing right ,'' the denial a constitutional U .S.C. 5 2253(2)(2), whieh requires a petitioner to demonstrate ''that 'reasonable jurists would find the district court's assessment of the constitutional wrong.''' Tennard v . Dretke, 124 claims debatable or 2562, 2565 (2004) (quoting Slack v . McDaniel, 12O S. Ct. 1595, 1604 (2000)) Where denial of relief is based on procedural grounds, the petitioner must show not only that ''jurists of reason would find debatable whether the petition states a valid claim of the denial rightz'' but also that they ''would find a constitutional debatable whether the district court was correct in its procedural ruling .'' Slack , l2O at 16 04 . A district court may deny a certificate appealab ility , sua sronte , without requiring further briefing or argument . Alexander v . Johnson, 211 F.3d 895, 898 (5th Cir. 2000). See After careful rev iew of the p leadings and the applicable law , the court concludes that reasonable jurists would not debate whether the petitioner states a valid claim for relief or that the court 's procedural ruling was wrong . Because the petitioner does not otherwise demonstrate that his claim s could be resolved - 2 1- a different manner , a certificate of appealability will not issue in this case . VI . Conclusion and Order The court ORDERS as follows : Respondent Lorie Davis's Motion to Dismiss (Docket Entry No . l2) is GRANTED. The Petition for a Writ of Habeas Corpus By a Person in State Custody filed by William Monterial Jones (Docket Entry No. 1) is DENIED, and this action will be dismissed with prejudice. Petitioner's Request for an Evidentiary Hearing (Docket Entry No. 16) is DENIED . certificate appealability is DENIED . The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties . SIGNED at Houston , Texas , on this 22nd day of April, 2019 . e A S IM LA KE UN ITED STATES DISTRICT JUDGE - 22-
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