Opinion
No. 3:17-cv-797-K-BN
02-06-2020
BRIAN WAYNE DRAKE (TDCJ No. 1950303), Petitioner, v. LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Brian Wayne Drake, a Texas prisoner, filed a pro se application for writ of habeas corpus under 28 U.S.C. § 2254 concerning two convictions for aggravated robbery with a deadly weapon, in which he asserts that the indictments were void; that his trial counsel was constitutionally ineffective; that the trial court erred; and that his arrest was unlawful. See Dkt. Nos. 3, 35, & 36.
The State filed a response opposing relief. See Dkt. No. 26. And Drake filed a reply brief. See Dkt. No. 31.
The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny Drake's request for federal habeas relief.
Applicable Background
As to the habeas claims now before the Court, "[a] jury convicted Brian Wayne Drake of two aggravated robberies with a deadly weapon and assessed punishment at concurrent twenty-year sentences." Drake v. State, Nos. No. 05-14-01115-CR & 05-14-01116-CR, 2015 WL 6861363, at *1 (Tex. App. - Dallas Nov. 9, 2015, no pet.); see State v. Drake, Nos. F13-14123-Q & F13-30911-Q (204th Jud. Dist. Ct., Dallas Cnty., Tex.). The facts underlying these offenses, as outlined by the Dallas Court of Appeals, are:
On April 14, 2013, Leo Vargas was working as the store manager of a Burger King in Grand Prairie. Vargas was in the office doing routine paperwork when he heard his employee, Laura Enriquez, scream. Vargas turned and saw appellant holding a gun to Enriquez's head. Appellant demanded the money, and Vargas began gathering the money from the store safe and registers. After about four to six minutes, Vargas tried to get appellant to leave by falsely telling him the police had arrived. Appellant ran to the front door, saw the police were not there, and went back to Vargas and said he was going to kill him. Vargas, who was standing near the drive-thru window, jumped out the window. Once outside, he took pictures of appellant's vehicle.
....
Two weeks later, on May 5, 2013, Matthew Romero was working at the Burger King in Cedar Hill. That morning before the restaurant opened, appellant pulled up in a white SUV and acted like he was having car trouble. When the restaurant opened, appellant entered, pulled out a gun, held it "point-blank" to Romero's face, and demanded the money. The prosecutor asked Romero if he had seen guns before, and Romero said "[a] few." The prosecutor then asked if appellant's gun was a "real gun," and Romero replied, "It looked real." Appellant forced Romero to the back office, where Romero took the money from the registers and gave it to appellant. As appellant was leaving the restaurant, the store manager was entering. As the two passed each other, appellant said, "I just robbed you." The manager wrote down the license plate number of appellant's vehicle and called the police. Still shots from a surveillance video were admitted into evidence.
Later that day, Cedar Hill police identified appellant as a suspect in the robbery and arrested him at his apartment in Dallas. While searching him, they asked him "where's the gun." Appellant directed them to his right hip pocket or waistband of his pants, and police seized the gun, which was loaded. The police also searched appellant's apartment and recovered a Burger King bag containing $910 in cash, as well as clothing that matched what appellant was wearing during the Cedar Hill robbery.
Police transported appellant to the police station, where he agreed
to talk to them. During the interview, Detective William Hutson asked appellant if he used the same gun in both the Grand Prairie and Cedar Hill robberies, and appellant nodded that he did. Hutson testified the gun used in the robberies was the one found on appellant when he was arrested. The gun and bullets were admitted as evidence.Drake, 2015 WL 6861363, at *1-*2.
As to these criminal judgments, the Texas Court of Criminal Appeals (the "CCA") denied Drake's state habeas applications without written order on the trial court's findings without a hearing. See Ex parte Drake, WR-84,531-16 & -17 (Tex. Crim. App. Mar. 8, 2017); see also Dkt. No. 26-1.
Legal Standards
"Federal habeas features an intricate procedural blend of statutory and caselaw authority." Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). In the district court, this process begins (and often ends) with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), under which "state prisoners face strict procedural requirements and a high standard of review." Adekeye, 938 F.3d at 682 (citation omitted). And, under AEDPA, where a state court has already rejected a claim on the merits, a federal court may grant habeas relief on that claim only if the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or28 U.S.C. § 2254(d); see Adekeye, 938 F.3d at 682 ("Once state remedies are exhausted, AEDPA limits federal relief to cases where the state court's decision was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or was 'based on an unreasonable determination of the facts in light of the evidence presented.'" (citation omitted)); see also Allen v. Vannoy, 659 F. App'x 792, 798-99 (5th Cir. 2016) (per curiam) (describing Section 2244(d) as "impos[ing] two significant restrictions on federal review of a habeas claim ... 'adjudicated on the merits in state court proceedings'").
(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.
A state court adjudication on direct appeal is due the same deference under Section 2254(d) as an adjudication in a state post-conviction proceeding. See, e.g., Dowthitt v. Johnson, 230 F.3d 733, 756-57 (5th Cir. 2000) (a finding made by the CCA on direct appeal was an "issue ... adjudicated on the merits in state proceedings," to be "examine[d] ... with the deference demanded by AEDPA" under "28 U.S.C. § 2254(d)").
And "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see also Sanchez v. Davis, 936 F.3d 300, 305 (5th Cir. 2019) ("[T]his is habeas, not a direct appeal, so our focus is narrowed. We ask not whether the state court denial of relief was incorrect, but whether it was unreasonable - whether its decision was 'so lacking in justification' as to remove 'any possibility for fairminded disagreement.'" (citation omitted)).
A state court decision is "contrary" to clearly established federal law if "it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts." Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam) ("We have emphasized, time and time again, that the [AEDPA] prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is 'clearly established.'" (citation omitted)).
A decision constitutes an "unreasonable application" of clearly established federal law if "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000); see also Pierre v. Vannoy, 891 F.3d 224, 227 (5th Cir. 2018) (a petitioner's lack of "Supreme Court precedent to support" a ground for habeas relief "ends [his] case" as to that ground).
"For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.... A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citations and internal quotation marks omitted). "Under § 2254(d), a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102 (internal quotation marks omitted); see also Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017) (recognizing that Section 2254(d) tasks courts "with considering not only the arguments and theories the state habeas court actually relied upon to reach its ultimate decision but also all the arguments and theories it could have relied upon" (citation omitted)).
The Supreme Court has further explained that "[e]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Richter, 562 U.S. at 101 (internal quotation marks omitted). And "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. The Supreme Court has explained that, "[i]f this standard is difficult to meet, that is because it was meant to be," where, "[a]s amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings," but "[i]t preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents," and "[i]t goes no further." Id. Thus, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must 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 in existing law beyond any possibility for fairminded disagreement." Id. at 103; accord Burt v. Titlow, 571 U.S. 12, 20 (2013) ("If this standard is difficult to meet - and it is - that is because it was meant to be. We will not lightly conclude that a State's criminal justice system has experienced the extreme malfunction for which federal habeas relief is the remedy." (internal quotation marks, brackets, and citations omitted)).
As to Section 2254(d)(2)'s requirement that a petitioner show that the state court adjudication "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," the Supreme Court has explained that "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance" and that federal habeas relief is precluded even where the state court's factual determination is debatable. Wood v. Allen, 558 U.S. 290, 301, 303 (2010). Under this standard, "it is not enough to show that a state court's decision was incorrect or erroneous. Rather, a petitioner must show that the decision was objectively unreasonable, a substantially higher threshold requiring the petitioner to show that a reasonable factfinder must conclude that the state court's determination of the facts was unreasonable." Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (brackets and internal quotation marks omitted).
The Court must presume that a state court's factual determinations are correct and can find those factual findings unreasonable only where the petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e) (1); Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001). This presumption applies not only to explicit findings of fact but also "to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact." Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); see also Ford v. Davis, 910 F.3d 232, 235 (5th Cir. 2018) (Section 2254(e)(1) "'deference extends not only to express findings of fact, but to the implicit findings of the state court.' As long as there is 'some indication of the legal basis for the state court's denial of relief,' the district court may infer the state court's factual findings even if they were not expressly made." (footnotes omitted)).
And "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 562 U.S. at 98; see also Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003) ("a federal habeas court is authorized by Section 2254(d) to review only a state court's 'decision,' and not the written opinion explaining that decision" (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam))); Evans, 875 F.3d at 216 n.4 (even where "[t]he state habeas court's analysis [is] far from thorough," a federal court "may not review [that] decision de novo simply because [it finds the state court's] written opinion 'unsatisfactory'" (quoting Neal, 286 F.3d at 246)).
Section 2254 thus creates a "highly deferential standard for evaluating state court rulings, which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). To overcome this standard, a petitioner must show that "there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. That is, a petitioner must, in sum, "show, based on the state-court record alone, that any argument or theory the state habeas court could have relied on to deny [him] relief would have either been contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court." Evans, 875 F.3d at 217.
Analysis
I. Sufficiency of the Indictments
"The sufficiency of a state indictment is not a matter for federal habeas relief unless it can be shown that the indictment is so defective that it deprives the state court of jurisdiction," McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994) (citing Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980)); accord Alexander v. McCotter, 775 F.2d 595, 598 (1985).
For an indictment to be "fatally defective," no circumstances can exist under which a valid conviction could result from facts provable under the indictment. Morlett v. Lynaugh, 851 F.2d 1521, 1523 (5th Cir. 1988).Fields v. Thaler, Civ. A. No. H-11-0515, 2012 WL 176440, at *6-*7 (S.D. Tex. Jan. 20, 2012).
State law determines whether an indictment is sufficient to vest jurisdiction in the state trial court. Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994). Under Texas law, "indictments charging a person with committing an offense, once presented, invoke the jurisdiction of the trial court and jurisdiction is no longer contingent on whether the indictment contains defects of form or substance." Teal v. State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007). [Even the] "failure to allege an element of an offense in an indictment or information is a defect of substance," as opposed to one of jurisdiction. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). As acknowledged in Studer, if omitting an element from an indictment is a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element. Id.
Drake has not shown that the state indictment he attacks was "so defective" as to deprive the "state court of jurisdiction." McKay, 12 F.3d at 68. The state habeas court addressed the merits of - and found lacking - Drake's invalid-indictments claim, see Dkt. No. 22-14. And, by denying his state habeas applications without a written order on those findings, the CCA, the highest state court, has indicated "that the indictment is sufficient, so [Drake's] claim is thus not cognizable under § 2254." Odham v. Scott, 56 F.3d 1384 (table), 1995 WL 337647, at *2 (5th Cir. May 15, 1995) (per curiam) (citing Alexander, 775 F.2d at 599; McKay, 12 F.3d at 68).
II. Ineffective Assistance of Counsel ("IAC")
The Court reviews IAC claims, whether directed at trial or appellate counsel, under the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a habeas petitioner must demonstrate that the performance of his attorney fell below an objective standard of reasonableness. See id. at 687-88. To be cognizable under Strickland, trial counsel's error must be "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687; see also Buck v. Davis, 137 S. Ct. 759, 775 (2017) (reaffirming that "[i]t is only when the lawyer's errors were 'so serious that counsel was not functioning as the "counsel" guaranteed ... by the Sixth Amendment' that Strickland's first prong is satisfied" (citation omitted)).
The petitioner also must prove that he was prejudiced by his attorney's substandard performance. See Strickland, 466 U.S. at 687, 692. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
[B]ecause of the risk that hindsight bias will cloud a court's review of
counsel's trial strategy, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012) (quoting Strickland, 466 U.S. at 689).
"A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). Moreover,"[j]ust as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities." Richter, 562 U.S. at 110. "The Supreme Court has admonished courts reviewing a state court's denial of habeas relief under AEDPA that they are required not simply to give [the] attorney's the benefit of the doubt, ... but to affirmatively entertain the range of possible reasons [petitioner's] counsel may have had for proceeding as they did." Clark v. Thaler, 673 F.3d 410, 421 (5th Cir. 2012) (internal quotation marks omitted).
Therefore, on habeas review under AEDPA, "if there is any 'reasonable argument that counsel satisfied Strickland's deferential standard,' the state court's denial must be upheld." Rhoades v. Davis, 852 F.3d 422, 432 (5th Cir. 2017) (quoting Richter, 562 U.S. at 105); see also Sanchez, 936 F.3d at 305 ("As the State rightly puts it, we defer 'both to trial counsel's reasoned performance and then again to the state habeas court's assessment of that performance.'" (quoting Rhodes, 852 F.3d at 434)).
To demonstrate prejudice, a habeas petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Thus, "the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Richter, 562 U.S. at 111. "Instead, Strickland asks whether it is 'reasonably likely' the result would have been different," which "does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case." Id. at 111-12 (quoting Strickland, 466 U.S. at 693, 696, 697). "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112.
IAC claims are considered mixed questions of law and fact and are therefore analyzed under the "unreasonable application" standard of 28 U.S.C. § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010); Adekeye, 938 F.3d at 682.
Where the state court adjudicated ineffective-assistance claims on the merits, this Court must review a habeas petitioner's claims under the "doubly deferential" standards of both Strickland and Section 2254(d). Cullen v. Pinholster, 563 U.S. 170, 190, 202 (2011); compare Rhoades, 852 F.3d at 434 ("Our federal habeas review of a state court's denial of an ineffective-assistance-of-counsel claim is 'doubly deferential' because we take a highly deferential look at counsel's performance through the deferential lens of § 2254(d)." (citation omitted)), with Johnson v. Sec'y, DOC, 643 F.3d 907, 910-11 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.").
In such cases, the "pivotal question" for this Court is not "whether defense counsel's performance fell below Strickland's standard"; it is "whether the state court's application of the Strickland standard was unreasonable." Richter, 562 U.S. at 101; see also id. at 105 ("Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." (internal quotation marks and citations omitted)). In other words, AEDPA does not permit a de novo review of state counsel's conduct in these claims under Strickland. See id. at 101-02. Instead, on federal habeas review of a claim that was fully adjudicated in state court, the state court's determination is granted "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id. at 101.
See also Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam) (explaining that federal habeas review of ineffective-assistance-of-counsel claims is "doubly deferential" "because counsel is 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'"; therefore, "federal courts are to afford 'both the state court and the defense attorney the benefit of the doubt'" (quoting Burt, 571 U.S. at 22, 15)); Adekeye, 938 F.3d at 683-84 ("The Supreme Court standard on prejudice is sharply defined: 'It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.' [A petitioner] must show it was 'reasonably likely' the jury would have reached a different result, not merely that it could have reached a different result. The Court reaffirmed this point in Richter: 'The likelihood of a different result must be substantial, not just conceivable.' Now layer on top of that the habeas lens of reasonableness. [Where] the state court has already adjudicated [a petitioner's] ineffective-assistance claim on the merits, he must show that the court's no-prejudice decision is 'not only incorrect but "objectively unreasonable."' Put differently, [he] must show that every reasonable jurist would conclude that it is reasonable likely that [a petitioner] would have fared better at trial had his counsel conducted [himself differently]. 'It bears repeating,' the Supreme Court emphasized in Richter, 'that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.'" (footnotes omitted)).
The state court findings of fact and conclusions of law recommending denial of Drake's habeas claims are extensive. See, e.g., Dkt. No. 22-14 at 3-57. And those findings and conclusions thoroughly examine Drake's trial counsel's pre-trial and trial performance in light of the numerous claims Drake asserts, finding his claims lacking. See id. at 38-49.
Applying the deferential Strickland standards - through the deferential lens of AEDPA - to the state court findings and conclusions, as the Court must, Drake has not shown that the CCA's denial of any claim that his counsel's representation violated Drake's rights under the Sixth Amendment amounts to either "an unreasonable application of Strickland or an unreasonable determination of the evidence." Garza v. Stephens, 738 F.3d 669, 680 (5th Cir. 2013) (citing 28 U.S.C. § 2254(d)(1)-(2)); see also, e.g., Rhodes, 852 F.3d at 432, 434; Sanchez, 936 F.3d at 305.
III. Trial Court Error
To prevail on his habeas claims that the state trial court erred - by limiting the testimony of three defense witnesses, by threatening and intimidating his counsel, and by failing to invoke his right to allocute - Drake must show that these alleged errors "'had a substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). So, "[e]ven if [the Court was] entitled to grant relief under one of the provisions of § 2254(d), [it] may not do so if the trial error was harmless" under the Brecht standard, Burgess v. Dretke, 350 F.3d 461, 466 (5th Cir. 2003), which is "'intended to apply to all federal habeas cases involving constitutional "trial" error,'" id. (quoting Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003)).
In this circuit, under Brecht,
a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict. [But, if there exists] "virtual equipoise as to the harmlessness," under the Brecht standard, of the error, then [a court] must conclude that it was harmful.Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)).
Reviewing the thorough state court findings and conclusions as to the trial court error claims, see, e.g., Dkt. No. 22-14 at 12-17, Drake fails to show any error, much less error that was not harmless.
IV. Unlawful Arrest
Drake's final claim on habeas review is that he was unlawfully arrested, a claim implicating an alleged Fourth Amendment violation, which the state habeas court considered and rejected. See, e.g., Dkt. No. 22-14 at 19-20. Stone v. Powell, 428 U.S. 465 (1976), "bars habeas review of Fourth Amendment claims when the state has provided an opportunity for full and fair litigation of the claim.... [And t]he Fifth Circuit applies the bar as long as the state gives the defendant an opportunity to litigate the issue, whether or not the defendant takes advantage of the opportunity." ShisInday v. Quarterman, 511 F.3d 514, 524-25 (5th Cir. 2007) (per curiam) (citing Janecka v. Cockrell, 301 F.3d 316, 320-21 (5th Cir. 2002)). Because Texas provides a defendant an opportunity to litigate an unlawful arrest claim - and Drake did in fact litigate his unlawful arrest claim - "the Stone bar applies." ShisInday, 511 F.3d at 525.
Recommendation
The Court should deny the application for a writ of habeas corpus.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: February 6, 2020
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE