Lewis v. Davis, No. 4:2017cv01025 - Document 20 (N.D. Tex. 2019)
Court Description: Memorandum Opinion and Order: It is ORDERED that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed, without prejudice, as to ground three for failure to exhaust state-court rem edies and that the petition as to the remaining grounds be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (see order for specifics) (Ordered by Senior Judge John McBryde on 2/21/2019) (mpw)
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Lewis v. Davis Doc. 20 U.S. DISTRICT COURT NORTI lllRN DISTRICT OF TEXAS FILED ., IN THE UNITED STATES FOR THE NORTHERN DISTRICT OF FORT WORTH DIVISION COUW EXAS FEB 21 2019 i CLERK, U.S. DISTRICT COURT GORDON RAY LEWIS, Pe ti ti oner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § § § BY--...Dcputy ----- No. 4:17-CV-1025-A MEMORANDUM OPINION and ORDER This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Gordon Ray Lewis, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied, in part, and dismissed, in part. I. FACTUAL AND PROCEDURAL HISTORY On June 28, 2013, a jury in Hood County, Texas, Case No. CR12234, found petitioner guilty of capital murder and, the state having waived the death penalty, the trial court assessed his punishment at life imprisonment without parole. (Clerk's R. 98.) Petitioner's conviction was affirmed on appeal, the Texas Court Dockets.Justia.com of Criminal Appeals refused his petition for discretionary review, and the United States Supreme Court denied his petition for writ of certiorari. (Docket Sheet 1-2.) Petitioner also sought postconviction state habeas-corpus relief by challenging his conviction in a state habeas application, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (SHR02, 1 vol. 1, 5-38 & Action Taken.) This federal petition followed. This case involves the shooting death of Ormand Gene Sabin, the owner of TJ's Bar and Grill in Granbury, Texas, by Justin Ragan during a robbery of the establishment. 2 The state appellate court summarized the factual background of the case as follows: Ormand Gene Sabin owned TJ's Bar and Grill, a restaurant where [petitioner]'s girlfriend, Kimberly Milwicz, had worked until she was fired in late December 2012. Milwicz was angry with Sabin for firing her, and she and [petitioner] wanted to rob the bar for revenge. On the night of January 16, 2013, [petitioner] offered his acquaintance, Justin Ragan, methamphetamines if he would go with him to rob Sabin. Witnesses saw [petitioner] that evening with a pistol and saw [petitioner] and Ragan "suiting up" in black clothes and hoodies as a "disguise." [Petitioner] and Ragan appeared very high on methamphetamines. The manager of a convenience store near TJ's saw [petitioner] in her store buying a fountain drink around 5:15 or 5:20 a.m. Another witness testified that Ragan's truck sped past him near TJ's sometime around 5:00 a.m. Sabin's employee, Brandy Shirley, discovered 1'1 SHR02" refers to the record of petitioner's state habeas proceeding in WR-56,982-02. 2 It appears the bar and grill was also known as TJ's Private Club & (Reporter's R., vol 10, State's Ex. 77.) 2 Sabin lying on the floor when she went in to help him open the bar. The phone at TJ's had been ripped from the wall, so Shirley ran to the convenience store and called 911 at 6:24 a.m. Paramedics arrived but could not revive Sabin. At 6:38 a.m., Ragan called 911 and reported that his truck had been stolen. At 6:57 a.m., someone called 911 and reported that Ragan's truck was abandoned in front of his house with the engine still running. A black bag found inside the truck contained prescription pill bottles in [petitioner]'s name and several unfired nine millimeter bullets. An expert witness testified that the casing found at the crime scene had been loaded in the same magazine as the unfired cartridges found in the truck. A straw and lid from a soft drink found on the passenger-side floorboard contained [petitioner]'s DNA. Police later found a duffle bag of money in the abandoned house next to [petitioner]'s house. [Petitioner] claimed to own the abandoned house and treated it like it was his property. [Petitioner] was eventually arrested and charged with Sabin's murder. Prior to trial, [petitioner]'s mother was convicted of retaliation against [the state trial judge] Judge Ralph Walton, who was to preside over [petitioner]'s case. [Petitioner] filed a motion to recuse Judge Walton from his case. Judge Walton referred the motion to Judge Jeff Walker who, after a hearing, denied the motion. (Mem. Op. 1-3.) The appellate court summarized the testimony at trial as follows: Ray Yates testified that one day he, [petitioner], and Milwicz were driving to Fort Worth to buy methamphetamine when [petitioner] and Milwicz began discussing "robbing TJ's so that [Milwicz] could have the money, or someone, to go back to California or something like that. She was wanting to get out of Texas. I think she was in trouble already for something.n Rebecca Cleere testified that Ragan was at her 3 house the night before the murder. While he was visiting, [petitioner] and Milwicz arrived. Cleere testified that Milwicz was aggravated and was talking about "wanting [Sabin] to be hurt, and he needed to get what he had . coming to him. She had lost her home, lost her job, and she blamed it all on him." Cleere said that Milwicz was trying to get someone to burglarize TJ's and if she could not get [petitioner] to do it, she would get someone else to do it. Cleere testified that [petitioner] asked Ragan to go with him to rob TJ's. Cleere testified that Ragan "thought it was a stupid idea to go out there to rob the old man for a few hundred dollars." [Petitioner] then offered Ragan methamphetamines if he would go. Cleere also testified that another person who was sleeping at her house, Bryce Cobbs, "popped his head into the room," and [petitioner] asked him if he too wanted to go to TJ' s. Later that night, Ragan borrowed a car from a woman named Christina Munoz, who was visiting Michael Eubank's house down the street from [petitioner]'s house. Munoz later decided she wanted her car back. Yates, who was also at Eubank's house, walked down the street to see if he could find the car. He found the car with Ragan and [petitioner]. He testified that "they looked pretty high" and were "suiting up for something." He believed they were suiting up for a robbery because they were wearing dark clothes and hoodies as a "disguise." He testified that he had a conversation with [petitioner]. He said, A. Well, I was trying to tell him that it wasn't a good idea, it was way too late or early, however you want to look at it. Q. What wasn't a good idea? A. To go rob TJ's. I mean pretty much anybody knows that the owner of the place gets there at four or five o'clock in the morning and-to drink coffee and eat breakfast. Some-somebody's going to be there or going to show up. 4 Q. And why is that a problem? A. Well, if you're going to rob the place, you don't want nobody there. [I]t ain't going to go right. Either you're not going to be able to do it or any number of things. Q. And how did [petitioner] respond to this? A. He said he got it. Q. What did that mean to you? A. Keep out of his business. Yates testified that [petitioner] owned two guns, including a nine-millimeter pistol, and that he had never seen Ragan with a gun. Yates admitted that the pistol that he saw could have been a BB gun. Richard McClatchy testified that [petitioner] pulled a pistol or BB gun on him the evening before the murder. He testified that Ragan was very high that evening. McClatchy admitted that he had told police that [petitioner) was also very high and that he believed that "the odds of it being the same gun that was used in the murder that was pointed at [him) was a ten on a scale of one to ten." McClatchy testified that he saw Ragan's truck drive by near TJ's around 5:00 a.m. He previously told the police that he might have seen someone else in the truck but that it was too dark to tell. Joshua Jenkins also testified that he saw [petitioner) and Ragan together that night. On the morning of the murder, the manager of the convenience store down the street from TJ's saw [petitioner) enter her store around 5:15 or 5:20 a.m. [Petitioner] bought cigarettes and a fountain drink. Justin Pratt testified that [petitioner) had told him that when he came out of the store, Ragan was loading a pistol and said, "Let's go." Shirley called 911 from the convenience store at 5 6:24 a.m. Paramedics arrived at the scene at 6:30 a.m. A paramedic testified that because Sabin's body was still warm, he had been dead for less than an hour. Eubank testified that he was at the convenience store at the time that Shirley ran from TJ's to use the phone. By the time he got back home, he saw Ragan "running from street to street, and then he came and-it looked like he was throwing up to me, he was across the street from my house." Ragan told him, "I shot him." Jenkins also testified that Ragan went to Eubank's house and that Ragan was "out of breath, sweating, [and] pale." Yates too testified that he saw Ragan that morning and that Ragan was "breathing hard, sweating, breathing hard, and seemed kind of out of it, scared." Ragan told Yates that he had shot someone. Ragan used Eubank's phone to report his truck missing at 6:38 a.m. Munoz saw Ragan later that morning as she was leaving the neighborhood. Ragan asked her for a ride. They stopped at a grocery store in Glen Rose. Ragan had a roll of money that he said he got from the bar. He told Munoz that he had shot somebody. Munoz later told the police that more money was hidden across the street from Eubank's house and "at [petitioner's] place." Police located money stuffed inside some abandoned chairs across the street from Eubank's house. Police also found a duffle bag of money in the abandoned house next to [petitioner]'s house. [Petitioner]'s ex-girlfriend testified that [petitioner] claimed that the abandoned house next to his mother's home was his property and that he kept a lock on the door. She testified that Milwicz lived with [petitioner] in the abandoned house for a period of time. Eubank also testified that [petitioner] would stay occasionally in the abandoned house. And Jenkins, who lived down the road from [petitioner], testified that he believed that the abandoned house was "part of the same property" as [petitioner]'s mother's house. When police found Ragan's truck, they discovered a lid and straw on the passenger-side floorboard among a pile of ice. The lid and straw contained [petitioner]'s DNA. The convenience store manager identified the lid and straw as the type sold in her store. Also in the truck was a black bag containing prescription pill bottles in [petitioner]'s name, a bag of marijuana, 6 baggies, rolling papers, a radar detector, and several unfired nine-millimeter bullets. An expert witness testified that the casing found at the crime scene had been loaded in the same magazine as the unfired cartridges found in the truck. Pratt testified that in June 2012, [petitioner] had admitted to him that he had been involved with Sabin's murder. Pratt testified, "He told me that-that he-that him and Justin Ragan were at a store right by the bar, and that he had gone in to get something to drink, and he came out and he saw Justin loading a gun, loading a pistol." [Petitioner] told Pratt that he and Ragan went to TJ's but that [petitioner] did not go into the bar. Pratt testified that Milwicz went to the bar at the time of the murder to make sure that Sabin was there and that [petitioner] was "the one that made sure they had a gun." In January 2012, a few days before Ragan's trial for Sabin's murder, [petitioner] made a phone call from Wise County jail in which he instructed a woman to "plead the Fifth." He also told the woman, If you find somebody out there that you figured out that they're going to try to talk on me, you find out where they're at and you get the number and information to my lawyer. He handles every bit of it. And it's not against the law like that. But if you go fucking with them, then it's tampering with a witness. See what I'm saying? Cleere testified that [petitioner] also called her and told her to "plead the Fifth." (Mem. Op. 5-10.) II. ISSUES In seven grounds, petitioner challenges the state courts' decisions(1) allowing the trial judge's failure to recuse himself; (2) allowing the trial court's denial of his motion 7 for change of venue; (3) denying relief under newly discovered DNA forensic-evidence techniques; (4) allowing the admission of expert testimony linking a bullet casing from the crime scene to ammunition found in Ragan's truck; (5) allowing trial counsel to render ineffective assistance by failing to investigate and present alibi witnesses on his behalf; (6) allowing trial counsel to render ineffective assistance by failing to preserve the prosecution's improper jury argument for appellate review; and (7) allowing the prosecutor to refuse to recuse himself because of a conflict of interest and other misconduct. (Pet. 6-7g.) III. RULE 5 STATEMENT Respondent believes that petitioner may not have exhausted his third ground in state court but does not otherwise believe that the petition is barred by failure to exhaust, successiveness, or limitations. (Resp't's Answer 5.) IV. STANDARD OF REVIEW A § 2254 habeas petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ.of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court or that is based on 8 follows (any spelling, punctuation, and/or grammatical errors are in the original): There were multiple objections during argument from both sides and the trial court overruled every single one of them by saying it is "argumentn. I still consistently object to improper closing argument on this and many other cases tried in this court even though most if not all objections are overruled. In this case the deceased was known by some people in the area and [the prosecutor] was obviously one of those people. I didn't believe at the time of the pendency of the trial that [the prosecutor] harped on his relationship with the deceased in such a way that would have ultimately swayed the jury to convict. Law: This court in forming its conclusions of law should consider:(Jury argument must fall within one of the following four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. ) This court would have to decide if the sentence fell outside the bounds of a proper jury argument. If it did, were the statements to the jury so extreme, manifestly improper, injected new and harmful facts into the case that they deprive the defendant of a fair and impartial trial. (Supp. SHR02 14 (citations omitted).) Based on the record, counsel's affidavit, and his own recollection of the trial proceedings, the state habeas court entered factual findings consistent with counsel's affidavit. (Id. at 22.) Based on its findings, and applying the Strickland standard, as noted before, the court concluded, generally, that petitioner failed to overcome the presumption that counsel's action or inaction might be considered sound strategy. 40 (Id. at 24.) The court further concluded that, given the overwhelming evidence of petitioner's guilt, petitioner could not show prejudice because any error that may have been committed by counsel did not contribute to his conviction or punishment. (Id. at 23.) Improper jury argument by the state does not present a claim of constitutional magnitude in a federal habeas action unless it is so prejudicial that the state court trial was rendered fundamentally unfair within the meaning of the Due Process Clause of the Fourteenth Amendment. See Jones v. Butler, 864 F.2d 348, 356 (1988). To establish that a prosecutor's remarks are so inflammatory, the petitioner must demonstrate that the misconduct is persistent and pronounced or that the evidence of guilt was so insubstantial that the conviction would not have occurred but for the improper remarks. Id. Petitioner has made no such showing. Petitioner is not entitled to relief under his fifth or sixth grounds. For the reasons discussed herein, It is ORDERED that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed, without prejudice, as to ground three for failure to exhaust state-court remedies and that the petition as to the remaining grounds be, and is hereby, denied. The court further 41 ORDERS that a certificate of appealability be, and is hereby, denied. SIGNED February ';A_ ) , 2019. 42
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