Oliver v. Davis, No. 5:2016cv00553 - Document 39 (W.D. Tex. 2017)

Court Description: AMENDED MEMORANDUM OPINION AND ORDER. Signed by Chief Judge Orlando L. Garcia. (rg)
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Oliverv.Davis Doc.39 FILED UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SN ANTONIO DIVISION NOV 0 8 2017 CLERK, U.S DISTRICT COURT DARRICK DAVON OLIVER, TDCJ tAS By___________ WESTERN DISTRIQ * * * * * * * * * * * * * No. 1921743, Petitioner, V. LORIE DAVIS, Director, Texas Dep't Of Criminal Justice, Correctional Institutions Division, Respondent. DEPU CLERK CIVIL NO. SA-16-CA-00553-OLG NDED MEMORPNDUM OPINION ND ORDER Darrick Davon Oliver, an inmate in the custody of the Texas Department Division habeas Criminal of ("TDCJ-CID"), has pursuant corpus, Justice-Correctional filed to an application U.S.C. 28 Institutions § for writ a challenging 2254, of his convictions on two counts of retaliation as a habitual offender. Entry (Docket "DE" 1) Petitioner . subsequently was granted leave to file an amended petition. Petitioner has for Time Rules also requested Limitation" Governing (DE 34) Section a . 2254 preliminary review of the Movant's Responses 36), the record (DE 23), (DE (DE 33 (DE Cases, the and and 16) 9 and a "Motion 32) required by As amended petition. the amended habeas application 22), hearing requested Rule Court 4 of conducted the a Having considered 16), Respondent's Answer (DE and 35), Movant's Supplement (DE (DE and applicable law, the Court finds the petition should be DENIED. (DE 16). Petitioner's requests for Dockets.Justia.com an evidentiary DENIED. hearing and "time for are Petitioner threatening Procedural Background to charged with was harm two police two 2014, true to (DE after petitioner pled not the two enhancements, counts 23, pg. guilty to jury a retaliation of 411) On March . offense and the found him guilty of each count and further, found the enhancements to be true. . each 920) . with the Petitioner sentences to timely run concurrently. notice filed a unpublished opinion issued on February pg. 4, 2015, Oliver 00261-CR, 2015) 2015 WL Court of 505072 Criminal discretionary review. Oliver then filed App. (Tex. Appeals Oliver a refused State, v. (Id., appeal of of Appeals affirmed his conviction. the (Id., Punishment was assessed at thirty years imprisonment case v. (DE 23, an the Fourth Court State, Oliver's 04-14- No. On April . in pg. in and, 2015, 22, petition for PDR No. 220-15. state writ application on June challenging his convictions. by enhanced to habitual officers, status by two prior convictions. 570) also (DE 32 and 34). I. 28, limitations" pgs. 868-84) 2015, 2, The Court . of Criminal Appeals denied his application without written order on January 20, 2016. (Id., writ petition and amended and January 1, 2017, 845). pg. Oliver filed his federal federal writ petition on June respectively. (DE 1 amended petition, Oliver alleges the following: 2 and 16) . 8, In 2016 his 1. received ineffective assistance of trial and appellate counsel when He a. his motion for speedy trial was not ruled upon in spite of the delay between his arrest and trial; b. his attorney failed to subpoena witnesses; c. his d. his attorney failed to object to hearsay testimony; e. his attorney failed to file a motion to suppress police officer's illegal search and seizure; and f. his attorney transcripts. right to complainant's trial; confront witnesses was violated when the out-of-court statements were admitted at failed to provide a copy of the trial received ineffective assistance when his appellate counsel failed to raise grounds that the state habeas court found could have been raised on appeal. 2. He 3. African Americans were excluded from the jury. (DE 16, pgs. 6-13) II. Factual Background The factual background was briefly summarized by the Fourth Court of Appeals 2015, in its Memorandum Opinion, dated February 4, as follows: According to one of the witnesses, who was Oliver's common law wife, Oliver assaulted her, her sister, and her friend after returning home late one evening. The argument started when Oliver removed his and his wife's baby from its crib against his wife's wishes. Oliver slammed his wife's hand in the bedroom doorway, punched his wife's sister in the jaw, and ultimately, threw all three women out of the house. The wife called police. By the time San Antonio police officers Matthew Martin and Vincent Giardino arrived, Oliver had locked all three women out of the house. Ultimately, the officers arrested Oliver based on 3 outstanding warrants. However, before the officers could remove him from the home, Oliver verbally threatened his wife, her sister, and her friend, reminding them of his gang affiliation. Oliver made similar threats against the officers, prompting the retaliation charges.' 2015 WL 505072, *1.2 Oliver, III. Standards of Review Review of State Court Adjudications 1. Oliver's federal petition is standard of review provided by Penalty Death 2254 (d), a Act ("AEDPA") petitioner may governed by the the Antiterrorism and 28 . U.S.C.A. obtain not heightened Effective Under 2254. § federal habeas § corpus relief on any claim that was adjudicated on the merits in state court proceedings, (1) unless the adjudication of that claim either: 'resulted in a decision that was contrary to, unreasonable application of, determined by the Supreme resulted in a decision or involved an clearly established Federal law, as Court of the was that United States", based on an or (2) unreasonable determination of the facts in light of the evidence presented in the state court proceeding. (2005) of . v. Payton, 544 U.S. 133, 141 This intentionally difficult standard stops just short imposing claims Brown a complete bar already rejected in on federal state court relitigation proceedings. Harrington of v. 1Section 36.06 makes it an offense to threaten to harm another by an unlawful act in retaliation for, or on account of, another's service or status as a public servant. TEX. PENAL CODE ANN. § 36.06(a) (1) (A) (West 2011) 2Petitioner disputes these facts in his response filed on September 18, 2017, arguing that no consent to enter was given and further, that the out of court statements violated petitioner's right to confront the witnesses. (DE 35). V4I Richter, U.S. 562 664 651, A U.S. 102 86, (citing Felker (2011) habeas court's inquiry into unreasonableness should always be objective rather than subjective, on whether the was state law was incorrect 132-33 (2010) Even a court's unreasonable" erroneous. Wiggins ; McDaniel Smith, v. case for relief itself. show Richter, that the unreasonable, Landrigan, U.S. disagree" state on U.S. (2003) to v. . So correctness relief. Alvarado, higher obtain federal long U.S. habeas court's conclusion Schriro Andrade, jurists court's state 562 652, U.S. 664 relief on at (2004)). a v. 538 could decision, claim lacks merit a (2003) objectively v. "fairminded as the 120, petitioner must was Lockyer adjudicated on the merits in state court, the state state threshold." (2007); of a decision Richter, 541 U.S. 520-21 the Instead, court's 473 510, 558 reached a different determination that habeas Yarborough 465, Brown, it regardless of whether the 102. at "substantially the court's federal words, 550 U.S. state a 75-76 63, 562 whether not v. not mean does court would have and U.S. 539 contrary conclusion was unreasonable, habeas with a focus application of clearly established "objectively or strong federal 518 (1996)). federal federal Turpin, v. a precludes (citing 101 In other claim previously Oliver must show that court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing 5 law beyond any possibility for fairminded disagreement." 103; see also Bobby v. Furthermore, application presented" federal Stated all writ for of courts. presented with the exhausted. Id. F.3d 255, 459 U.S. court 4, courts before being presented the Connor, state same facts at 275-77. 404 U.S. and legal an relied upon exhaustion in 958 n.5 Additionally, § 2254(e) (2), factual a legal a state requirement." 708 F.2d 954, on for at Id. (5th Cir. habeas development (2011). finding. been . to (citing Vela to be that a . Cockrell, v. Harless, v. in federal from that satisfy v. the Estelle, 1983)). except for the narrow exceptions contained in in petitioner federal evidence presented to the state court . Wilder "fails 259 (1971) claim a theory distinct court," the to have A petitioner "advance[ing] based the must (citing Anderson 2001) "fairly 275 270, Thus "it is not enough (5th Cir. (1982)). argument been theory upon which the order in have system court assertions his 260 6 federal a must somewhat similar state-law claim was made." 274 in corpus differently, bases raised habeas v. at (2011) of Picard petitioner grounds the 24 state the to Dixon, 565 U.S. 23, Id. Cullen Reasoning that v. precluded is court court further must rely on and when challenging Pinholster, "[ut would from be 563 U.S. strange to 170, a the state 181-82 ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court," Pinhoister explicitly held that "[i]f a claim has been adjudicated on federal petitioner must 2254(d) at habeas the merits overcome state court, limitation the of on the record that was before that state court." (1) 182-85. Thus, bearing on § limited to the "evidence introduced in federal 2254(d) review" (1) record that and was this before adjudicated the claim on the merits." § Id. court has no Court's the a state review court "is that Id. Review of Sixth amendment Claims 2. Court The reviews alleged ineffective under Sixth cannot 466 U.S. establish counsel unless deficient and 687-88, Kentucky, In (2) 690. Strickland's 668 of trial claims concerning counsel the ("IATC" claims) test established in (1984) violation a he Amendment assistance the familiar two-prong Washington, at by a Strickland v. Under Strickland, a petitioner . demonstrates Sixth his of (1) Amendment counsel's performance this deficiency prejudiced his According to the Supreme Court, high bar is never 559 U.S. 356, 371 right defense. to was Id. "[s]urmounting (2010). determining whether an easy counsel task." performed Padilla v. deficiently, courts "must be highly deferential" to counsel's conduct, and a petitioner must show that counsel's performance fell beyond the bounds of prevailing objective 7 professional standards. Strickland, to have 466 U.S. rendered Counsel 687-89. at adequate "strongly presumed is assistance and made all significant decisions in the exercise of reasonable professional Burt Titlow, V. 466 U.S. tactics at and 134 690) Ct. S. strategy cannot the be of that entire Cotton permeates the Cockrell, v. counsel competent tactician, counsel miscalculation or may lack of unless for 752-53 is For this reason, the 689; be Amendment judged not be faulted foresight or Accordingly, the there "falls is (5th Cir. 540 2012) of a within professional assistance." 2003). As or a reasonable failing to prepare Richter, 562 U.S. every effort must be made to eliminate Gentry, benefit unfairness." strategist for for Strickland, 466 U.S. U.S. 1, hindsight.") strong the Feldman (2003) 6 guarantees reasonable competence, with deficiency v. chosen ill Cir. (5th flawless a "distorting effects of hindsight." Yarborough so obvious for what appear to be remote possibilities." at 110. constitutionally it with trial on "[j]ust as there is no expectation will attorney an basis trial F.3d 746, 343 the Supreme Court explained, that (quoting Strickland, (2013) "A conscious and informed decision . ineffective assistance it 17 10, judgment." v. (citations range Thaler, that of I,' omitted) an alleged reasonable 695 F.3d 372, (quoting Strickland, 466 U.S. at 689) [ól Sixth not perfect advocacy presumption wide ("The at 378 demonstrate To there is petitioner a reasonable a probability errors, result unprofessional been prejudice, A different. the reasonable but that, of "must show the proceeding would have probability is probability a Analysis Ineffective Assistance of Counsel Petitioner was February 28, pg. Strickland, at 694. IV. 1. counsel's for sufficient to undermine confidence in the outcome." 466 U.s. that 986) 2012, 2011, and tried on February 18, 2014. was He . arrested on December 26, represented by five attorneys and one appellate attorney, denied effective initially however, assistance appointed to as counsel, 2, stating Oliver 2012, that (DE attorneys, 23-24, four trial and maintains that he was counsel. represent on or about October withdraw of indicted on William A. December on Brooks the Brooks 26, was 2011; filed a motion to defendant Oliver had "expressed his dissatisfaction with Counsel's representation and in the manner he expects Counsel to conduct his representation." (DE 23-10, pg. 423) . On October 4, 2012, Michael Cohen to represent the defendant.3 the Court (Id., pg. appointed 427). Due 3Petitioner alleged in his state writ application and his petition for discretionary review that Cohen was ineffective because he prosecuted Oliver as a District Attorney in another case and, therefore, had a conflict of interest. However, petitioner does not raise any complaints against Cohen in his federal writ. Moreover, Cohen withdrew immediately upon learning of the conflict and it is unclear how petitioner was prejudiced by this one month representation. to Tony later, 428) pg. On withdraw for almost Court the Wallace counsel, as appointed about or allowed was Jimenez was . petitioner that Cohen conflict, a one year, stating appoint 2013, after Jimenez filed 25, Mr. that alternate and one defendant the counsel. continued to held February on represent Oliver throughout Vincent 2014. 18, the (Id., representing a motion to had requested (Id., trial, Dennis 525). pg. Tarver was then appointed on November 28, P. month represent Oliver. to October withdraw to 2013, and which was Callahan was appointed as petitioner's counsel on appeal. Speedy Trial Claim a. Petitioner contends that his trial attorneys were deficient in failing to obtain a and as a result, ruling on his motion for a speedy trial he was denied due process.4 that the time between his arrest, well past present a thirty the defense day time was Oliver maintains the charge and indictment was limit prejudiced by and that this ability to his delay due to the "disappearance of the only eyewitness's in this case." In determining whether the federal or state right to a speedy trial has been denied, the court employs a balancing test in which weighed. the conduct Shaw v. of State, both the 117 State S.W.3d 883, and the 888 defendant (Tex. Crim. are App. the extent petitioner newly asserts his appellate counsel was deficient in not raising this issue on appeal, petitioner has failed to exhaust his State Court remedies. Ficard, 404 U.S. at 275. '1To 10 2003); Kelly Barker see State, v. Wingo, v. 163 S.W.3d 407 U.s. 726 724, 514, 530 Crim. (Tex. accord (1972); App. 2005). In determining whether a particular defendant has been deprived of his right to speedy following factors: the defendant's defendant." 889. of delay, assertion Barker, this In trial, "Length a 407 of courts his U.S. the at and prejudice see 530; considered the reason for the delay, right, the respondent case, have Shaw, the S.W.3d at 117 concedes that to the two year delay in this case is sufficient to trigger the Barker analysis. Petitioner's first trial counsel, he did not file and argue a motion for the the time, petitioner's 75) Court case was was following Brooks, Mr. stated that speedy trial because at Felony a labeled "standard." Case Plan 23-24, (DE pgs. and 974- Brooks states that from the time that Oliver was arrested . until the time withdrew as he any action to delay the case; counsel, instead, the State did any delay was caused by the Court's scheduling and the Felony Case Plan. Mr. Jimenez, not take (Id.). petitioner's third trial counsel, states that he filed a Speedy Trial Motion and did not obtain a ruling prior to withdrawing However, February (Id.) . and of Mr. petitioner's Jimenez Mr. petitioner as Mr. 2014, Jimenez points Tarver, after counsel. out the opines that 11 was withdrew, in all 23, 965). pg. according that, motion Jimenez (DE ruled on and was likelihood, to in both mid- denied. the same result would have occurred had the Court year earlier.5 Further, (Id.). ruled on the motion Tarver, Mr. a petitioner's fourth trial attorney, states that he believes the trial delay had more to with problems do between petitioner anything the State did. fault trial Petitioner he appears to a appoint time familiarize been counsel. of attorneys This have withdraw required and current the and the court to rule on the motion new attorney, a his counsel. motion, and then of to change a Another factor. appears for busy the court's large a delay three new instead, been requests that appointed attorney to file to the repeated requested be have to contributing petitioner's that 969) delay that resulted; in any docket factor pg. attorneys than trial counsel appear to agree that the State was not Here, at (DE 23, and his himself with who then required petitioner's additional case. Thus, although the record indicates that petitioner asserted his right to a speedy trial, delayed the ability due to the case," Mr. also proceedings separate occasions. his it to reflects that petitioner repeatedly by requesting Moreover, present a of counsel on three although petitioner contends that defense was "disappearance new the prejudiced by this delay only eyewitness's in this Tarver stated that he contacted one of the witnesses Although petitioner argues he was denied effective assistance because the motion for speedy trial was not ruled on, Mr. Tarver states that he requested a ruling and the motion was denied. (DE 23, pg. 969) 12 who told him that neither she nor her sister were interested in coming to mess." court (Id., the motion, and pg. the Additionally, all work counsel's Strickland, reviewing court allegations the on representation likewise found (DE pg. 23, findings and trial 2) convincing Lonberger, performance 683, 696 (5th Cir. TCCA's decision clearly established 422, 2001) was an implicit the account that of trial objective an 991) pg. counsel's claim, was and determinations TCCA the not deficient. explicit factual entitled are to a which may be overcome only by clear evidence. 459 U.S. below petitioner's credibility a sufficiently concluded fall (DE 23-24, TCCA's in on complaints, detailed a Court not did ruling a counsel denying The . petitioner's The presumption of correctness, and denial of 466 U.s. at 694. provided and case. subsequently obtain to found that trial standard of reasonableness. In court's his and. the record reflects that counsel's failure in habeas trial their fact that Oliver of Based on the trial motion for speedy trial. rebutted tired petitioner has not demonstrated that he was, prejudiced by state were had not disappeared but rather were disinterested in testifying, fact, they 968). well as as the witnesses that U.S.C. 433 § (1983); 28 Neal Petitioner has . unreasonable federal law 13 or the Marshall 2254(e) (1); v. Puckett, not shown application facts in 239 v. F.3d that the of light either of the evidence presented. Accordingly, petitioner's ineffective assistance of counsel claim based on trial counsel's failure to obtain a ruling on his motion for a speedy trial is denied and dismissed with prejudice. Failure to Subpoena Witnesses b. Petitioner deficient were next that his trial failing to subpoena witnesses in necessary his to maintains that A. women who alleges were defense.6 Stairs, present been subpoenaed. In when Oliver was Z. petitioner Bernard, arrested, the three should have The record reflects an affidavit by Stairs who states she was not threatened and did not fear Oliver; Stairs does not 959) 23, pg. she states she witnessed a which was verbal "recall taken (Id.). However, submitted in PDR and, Oliver Mr. this support therefore, altercation and S.A.P.D. on March after the incident in question, not (DE Bernard also submitted an affidavit wherein her sister, Anayka Stairs, affidavit, however, deny that Oliver threatened the officers. Ms. . was petitioner maintains particular, Hargraves and S. counsel (Id., 5, between pg. 2012, 33). over Oliver, In this two months Bernard represents that she did threatening affidavit does of petitioner's any or not appear state writ has no bearing on a § bTo the one [herself] ." to have been application or 2254(d) (1) review as extent petitioner newly asserts his appellate counsel was deficient in not raising this issue on appeal, petitioner has failed to exhaust his State Court remedies. Picard, 404 U.S. at 275. 14 this the Court's state review court limited "is that to adjudicated the the record that was claim before on the merits." counsel, Mr. Brooks, Pinholster, 563 U.s. at 181-82. petitioner's Notably, addressed this allegation first in trial responding to petitioner's state writ: Oliver alleges key witnesses, whose testimony would have greatly aided the defense disappeared during the two year period between his indictment and trial. In the facts supporting ground one (1) of Oliver's application he claims the loss of witness testimony, 'that I did not commit these retaliation crimes and did not threaten anyone.' I am not able to determine the name of the person or persons that could provide that testimony from the facts supporting ground one (1) However, Oliver does name Zuleyka Bernard, An[a]yka Stairs and Sylvia Hargr[a]ves as the individuals present during his arrest in his application for relief. On March 28, 2011 [sic], I interviewed Oliver's fiancé, An[a]yka Stairs, and her sister Zuleyka Bernard (Bernard) Sylvia Hargr[a]ves was unavailable and unwilling to speak with me. During that interview Stairs and Bernard were unable to say whether Oliver committed the offense of retaliation of whether Oliver threatened anyone. I obtained an affidavit and contact information and I was in contact with both Stairs and Bernard until I withdrew from Oliver's . case. (DE 23, pgs. 986-87) Petitioner's fourth attorney, Mr. Tarver, also addressed this complaint in his response to petitioner's state writ: Regarding subpoenaing of witnesses to court, Mr. Oliver and I addressed this a lot. I got a phone nuthber to call from the Investigator's report as well as from Mr. Oliver. Neither number produced results. I spoke with a lady when I called one of the numbers on my cell phone at court. I identified myself and explained what I wanted. She did not identify herself, but informed me that neither she nor her sister were interested in coming to court. She 15 indicated to me that they were tired of Mr. Oliver and his I related this to Mr. Oliver who responded cursing, those bitches." I tried at different times calling back and the phone would either ring, or in one instance, someone picked up, I identified myself and they hung up. I spoke with two of Mr. Oliver's family members who came to court, a cousin and an older daughter, neither was helpful in contact information on the witnesses. The cousin told me that no one was coming to testify for Mr. Oliver because they were all fed up with him. She indicated that they knew what was going on, they just didn't want to get involved. I informed Mr. Oliver of all of this and he told me to leave the ladies to him, that he could get them down to court. He indicated that he still had a close relationship with them (the wife and sister) and he could get them to testify. mess. "fuck I also explained to Mr. Oliver that even if the ladies testified, it was not a done deal that their testimony would be favorable or if favorable not necessarily persuasive with the jury. I advised him that his wife had signed a San Antonio Police Department form 2089 stating that he slammed her finger in the door, and drug her down the hall by her hair. I also told him that she said that he was upset and violent that night. I told him a jury did not have to believe anything the ladies said. I told him the State would paint their testimony if it was supportive as being fearful of challenging him face to face in court. my opinion, even if the witnesses had shown up including the Investigator I don't believe the jury would have been persuaded by them due to the over whelming bad In facts on the States' side of the case. I just don't see that a jury would find them credible if they testified that Mr. Oliver was neither threatening nor violent towards anyone that night. Any witness would have been hard pressed to explain what happened when he came home and how they ended up being locked out the house at 3 o'clock in the morning with the baby still inside. I explained that their testimony at the very least would be problematic. I explained that the wife would be forced to describe the 'fight' they had that led to her finger getting slammed in the door; and to explain how she lost tufts of her hair in the hallway; and relate how she got locked out of a room away from her three week old baby. I explained to Mr. Oliver that I saw nothing positive in going to trial, there were too many negative facts to overcome. 16 The Investigator was never discussed as far as him coming to court. The witness count was always two, the wife and her sister. Finally, regarding the lady witnesses, neither of them have called me in the year and a half since trial requesting information or asking how they can help. I find that extremely telling, nor have they provided affidavits for Mr. Oliver in his application to this court seeking post-conviction relief. pgs. (DE 23, 987-88) trial Here, counsel's decision not to subpoena three witnesses who gave statements to the officers at the time of the incident that they had been threatened by the petitioner only to recant later their Cotton, unreasonable. strategy cannot assistance [they] Mr. of statements 343 be the counsel basis for "unless 752-53 at appear not (trial to be tactics and constitutionally [they are] ill so ineffective chosen permeate the entire trial with obvious unfairness") Tarver stated in his response, have believed the recanted their testimony of statements, depicting injuries that were the F.3d does original version of that . As it is doubtful the jury would family members particularly in who subsequently view of evidence sustained and were consistent with events reported to the officers. Accordingly, Oliver has not overcome the strong presumption that counsel's failure to subpoena the three witnesses "falls within the wide range of reasonable professional assistance." 695 F.3d at 378 (quoting Strickland, 466 U.s. at 689) 17 Feldman, Additionally, the state habeas trial court also found that trial counsel sufficiently rebutted all allegations and provided a detailed account their of work the on case. The Court concluded that trial counsel's representation did not fall below an objective Moreover, standard of found (DE pg. findings 23-24, (DE subsequently denying petitioner's in likewise 23, reasonableness. trial 2) and counsel's TCCA's The . performance credibility implicit determinations not 991) deficient. explicit factual entitled are TCCA the claim, was and pg. to a presumption of correctness, which may be overcome only by clear and convincing evidence. U.S. at that the 433; Neal, TCCA's 239 U.S.C. 28 F.3d at decision was § Petitioner has not 696. unreasonable an Marshall, 2254(e) (1); 459 shown application of either clearly established federal law or the facts in light of evidence the presented. ineffective assistance failure subpoena to Consequently, of based counsel witnesses Oliver's denied is trial on claim counsel's dismissed and of with prejudice. Right to Confront Witnesses c. Petitioner next asserts that trial counsel was ineffective in allowing them by right to state the officers three to testify complainants confront witnesses. writ application and (DE his regarding statements violation in 16, pg. 7) petition . of to petitioner's However, for made in his discretionary review, petitioner confront asserted that witnesses was violated his Sixth when Amendment the judge right allowed to the officers to introduce statements of nontestifying witnesses and further, permitted the State make to prejudicial statements regarding petitioner assaulting family members despite the fact that petitioner assault. neither was (DE 23, pg. 859) charged with nor convicted of The state court was never presented . with petitioner's current complaint that he was denied effective assistance Picard, admitted.7 federal is not made." 6) . counsel of claim is enough . Wilder, when 404 this U.S. at evidence . . 274 it that a somewhat F.3d at 260 statements Although 275. somewhat similar, and is well were petitioner's settled that 'sit similar state-law claim was (citing Anderson, 459 U.S. at Because petitioner has raised an argument based on a legal theory distinct from that relied upon in the state court, he has failed denied. to satisfy the exhaustion Id. requirement and his claim is at 259. ' In his supplement, petitioner complains that although he asked appellate counsel to assert ineffective assistance by his trial counsel (with respect to illegal search and seizure, compulsory process, confrontation clause, Batson Challenge, etc.), his appellate counsel refused. (DE 36, pg. 2). However, in his state court writ, filed on December 17, 2015, petitioner alleged that Tarver and Brooks failed to pursue his "speedy trial interest"; Cohen had a "conflict of interest"; Jimenez failed to obtain a ruling on the speedy trial motion; and Tarver also failed to investigate and prepare the case for trial, as well as subpoena witnesses. (DE 23-24, pgs. 16-7) Petitioner raised ineffective assistance only with respect to one of his four grounds while his remaining grounds were not raised in terms of ineffective assistance of counsel. 19 Failure to Object to Hearsay d. Petitioner next alleges that trial counsel was deficient in failing that object to the hearsay testimony. to testimony officers' three women witnesses as hearsay. regarding statements made by the should have been objected to and precluded record The reflects outside the presence of the jury, testimony; however, Petitioner maintains during that the Court ruled that the statements would be In any event, . held trial counsel objected to this admissible as exceptions to the hearsay rule. 240) hearing a pgs. (DE 23, 217- petitioner did not raise this issue in his petition for discretionary review or his state writ application; consequently, petitioner remedies Peoples, as claim this to 489 U.S. 346, it is his state denied. (1989); Anderson, 349 Petitioner next asserts failing illegally However, and exhaust to court Casljille 459 U.s. at v. 6. Failure to File Motion to Suppress e. in failed has to file entered in his a motion his backyard state writ, subjected to an illegal trial counsel that and was argue house. and that (DE petitioner alleged ineffective the officers 16, pg. 11) he had been search and seizure but did not present these claims as a denial of his right to effective assistance of counsel as he now does in his federal writ. As a result, petitioner's the current state court complaint was that 20 he never was (DE 23, pg. presented denied 857) with effective assistance of petitioner was Picard, counsel when subjected 404 U.s. at trial to counsel illegal an failed search to and argue seizure. Although petitioner's federal claim is 275. similar to his state law claim, petitioner has failed to satisfy the exhaustion requirement raising by legal theory distinct from that Wilder, F.3d at 259-60. 274 an argument based on a relied upon in the state court. Petitioner's claim is, therefore, denied. Failure to Provide Copy of Trial Transcripts f. Petitioner states that although he asked his trial numerous times transcripts, between his trial and [counse1 complaint was copies for the review Consequently, petitioner remedies his (1989); 2. District previously not record refused counsel discretionary and court of Castille, denied. trial agreement Office." This petition writ exhaust and an Oliver's state his Anderson, 459 U.S. at to Attorney's has failed to claim is "due raised in or reports counsel for application. his 489 state U.S. court at 349 6. Ineffective Assistance on Appeal Petitioner also maintains assistance when his that habeas the appeal. petitioner state (DE 16, appellate pg. contends court 7) that . In that he counsel found his failed to could have ineffective raise been supplement to his appellate 21 received raised his counsel was grounds on response, ineffective failing in allege on appeal failing to subpoena to ineffective in that trial witnesses counsel was trial and at failing to request rulings on the motion to suppress and motion for speedy trial. However, that his 1) violated; and In in his state habeas right to he was 2) application, speedy a trial and petitioner argued process due were subjected to an illegal search and seizure; he was denied his Sixth Amendment right to confrontation. 3) Order its dismissing petitioner's claims, the that "[t]he three claims presented in this habeas already been raised by Applicant him at the time stated petition have on appeal or were available Accordingly, appeal. of court this court to finds that Applicant is not entitled to raise these claims on habeas." (DE 991) pg. 23, received . At no time did petitioner raise the claim that he ineffective assistance when his appellate counsel failed to raise grounds that the state habeas court found could have been review or raised a on state appeal writ Castille, petition a application. has failed to exhaust his denied. in for discretionary Consequently, petitioner state court remedies and his claim is 489 U.S. at 349 (1989); Anderson, 459 U.S. at 6. 3. Batson Challenge Lastly, petitioner contends that African-Americans were excluded from the jury "for no other reason than being African22 American (1986) violation in Petitioner . Batson of alleges that Kentucky, v. six venire 476 U.s. members 79 who were African-American were excluded from the jury but fails to state who were they challenged further, fails identify them. presented Appeals; 4. state their Moreover, the to state therefore, why or juror this court they issue or 459 U.S. at was the to petitioner has (1989); Anderson, were challenged numbers not Court Castille, and otherwise or previously Criminal of failed to exhaust remedies and his claim is denied. Court 349 to by his State 489 U.S. at 6. Requests for a Hearing and for "Time Limitations" Petitioner Hearing (DE also and 32) Section 2254(e) Oliver's Petitioner's a a Motion for Time filed Motion authorizes evidentiary (2) Because conditions. adjudicate has evidentiary an petition, Motion for his Time for An Evidentiary Limitation (DE 34) hearings under narrow hearing unnecessary motion is DENIED. Limitation, which (DE to 32). essentially reurges his Speedy Trial Motion and seeks that his indictment be dismissed, is also DENIED. (DE 34) V. Certificate of Appealability The Court next determines whether to issue a certificate of appealability 2254 (2003) (COA) Proceedings; . See Rule Miller-El v. 11 (a) of Cockrell, (citing 28 U.S.C. § 2253(c)(1)). 23 the 537 Rules U.S. Governing 322, § 335-36 A COA may issue only if a petitioner makes "a substantial constitutional right." court rejects merits, U.S.C. 28 petitioner's a showing of the 2253(c) (2). § denial If constitutional of a district a claims on the the petitioner must demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims 484 debatable (2000) jurists or wrong." Slack v. McDaniel, 529 U.S. 473, This requires a petitioner to show "that reasonable . could debate whether petition the should have been resolved in a different manner or that the issues presented were 'adequate deserve to encouragement proceed to further.'" Miller-El, 537 U.S. at 336 (citation omitted). A district requiring Johnson, further debate the the may briefing 211 F.3d 895, forth above, not court Court 898 or COA a concludes 2000) that that sponte sua argument. (5th Cir. conclusion federal habeas relief. deny See Alexander v. For the reasons set . reasonable Oliver without was jurists would not entitled to As such, a COA will not issue. VI. Conclusion and Order Petitioner has failed to establish that the state court's rejection of the aforementioned claims on the merits during his state habeas involved an federal law, States, or corpus proceedings unreasonable as (2) was either application determined by the based on an of, Supreme unreasonable 24 (1) contrary to, clearly Court of or established the determination United of the facts in light of the evidence presented state trial and habeas corpus proceedings. Davon Oliver's in the petitioner's As a result, Darrick federal habeas corpus petition does not warrant federal habeas corpus relief. Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that: 1. Federal habeas corpus relief is DENIED and petitioner Darrick Davon Oliver's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 petition § (DE 16) is DISMISSED WITH PREJUDICE; 2. No Certificate of Appealability shall issue in this case; and 3. All other remaining motions, including petitioner's Motion for an Evidentiary Hearing (DE 32) and ''Motion for Time Limitation" (DE 34), are DENIED, and this case is now CLOSED. It is so ORDERED. SIGNED this day of November, 2017. ORLANDO L. GARCIA Chief United States District Judge 25