Petition for Writ of Certiorari — Brian Keith Edwards, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefMar 12, 2018

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10681

USDC No. 4:15-CV-76

a irue copy

Certified order Issued Dec 13, 2017

BRIAN KEITH EDWARDS,

it144 W.

Clerk, LY.S. Court of 4pea1s, Fifth Circuit

Petitioner-Appellant

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeals from the United States District Court

for the Northern District of Texas

ORDER:

Brian Keith Edwards, Texas prisoner # 1713824, was convicted by a jury

of felony driving while intoxicated and was sentenced to 20 years in prison. He

now seeks a--certffica-te-of--appealability -(CO*-to-appeal--the--district court'sdenial of his 28 U.S.C. § 2254 petition challenging this conviction. Edwards

seeks to assert that a warrantless blood draw constituted a Fourth Amendment

violation in light of Missouri u. McNeely, 569 U.S. 141 (2013), which was

decided while his case was pending on direct appeal. In addition, he contends

that his trial counsel rendered ineffective assistance by failing to raise a

McNeely-type claim in a pretrial motion to suppress, that his appellate counsel

rendered ineffective assistance by failing to raise McNeely in a late-filed

No. 16-10681

appellate brief and by failing to file a petition for discretionary review, and that

he was denied due process by the state appellate court's application of the

contemporaneous objection rule to bar consideration of his McNeely claim.:

To obtain a COA, Edwards must make "a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 483 (2000). "A petitioner satisfies this standard by demonstrating

that jurists of reason could disagree with the district court's resolution of his

constitutional claims or that jurists could conclude the issues presented are

adequatatodeserveencouragement to proceed further.". Miler-El-v. Cockrell,,

537 U.S. 322, 327 (2003). As the district court rejected the claims on their

merits, Edwards "must demonstrate that reasonable jurists would find the

district court's assessment of the constitutional claims debatable or wrong."

Slack, 529 U.S. at 484; see also Miller-El, 537 U.S. at 338. He has not made

the requisite showing. Accordingly, his motion for a COA is DENIED.

Edwards's request for appointment of counsel on appeal is likewise DENIED.

See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).

let Leslie H. Southwick

LESLIE H. SOUTHWICK

UATES CIRCUIT JD---

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BRIAN KEITH EDWARDS,

Petitioner,

WILLIAM STEPHENS, Director,

Texas Department of Criminal

Justice, Correctional

Institutionâ Division,

Civil ActiOn No. 4:15-CV-076-Y

Respondent.

FINAL JDENT

In accordance with its opinion and order signed this day, the

Court DENIES the petition of Brian Keith Edwards pursuant to 28

U.S.C. § 2254 in the above-captioned action.

SIGNED May 9, 2016.

TERJ R. MEANS

UNITED STATES DISTRICT JUDGE

Case 4:15-cv-00076-Y Document 23 Filed 05/09/16 Page 1 of 7 PagelD 869

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BRIAN KEITH EDWARDS,

Petitioner,

WILLIAM STEPHENS, Director,

Texas Department of Criminal

Justice, Correctional

Institutions Division,

Respondent.

Civil Action No. 4:15-CV-076-Y

OPINION AND ORDER

Before the Court is a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 filed by petitioner, Brian Keith

Edwards, a state prisoner, against William Stephens, director of

the Texas Department of Criminal Justice, Correctional Institutions

Division, Respondent.

After having considered the pleadings and relief sought by

Petitioner, the Court has concluded that the petition should be

denied.

I. FACTUAL AND PROCEDURAL HISTORY

In October 2010 Petitioner was indicted in the 29th Judicial

District Court, Palo Pinto County, Texas, Case No. 1299959D, for

felony driving while intoxicated (DWI). (Adm. R., Clerk's R.37-38,

ECF No. 1-2.) The indictment also included a, felony-enhancement

paragraph alleging a prior felony conviction for the same offense.

On May 6, 2011, a jury found Petitioner guilty, Petitioner pleaded

Case 4:15-cv-00076-Y Document 23 Filed 05/09/16 Page 2 of 7 PagelD 870

true to the sentence-enhancement allegation, and the jury assessed

his sentence at twenty years' confinement and a $10,000 fine. (Id.

at 51-52.) Petitioner appealed his conviction, but the Eleventh

Court of Appeals of Texas affirmed the trial court's judgment.

(Id., Mem. Op., ECF No. 10-5.) Petitioner did not seek further

direct review. In July 2014 Petitioner filed a state habeas

application challenging his 2011 conviction, raising his claims

raised here, which was denied without written order by the Texas

Court of Criminal Appeals. (Id. Writ WR-82,234-01, cover & Action

Taken, ECF Nos. 10-24 & 10-21.) This federal habeas petition

followed.

The appellate court set out the facts of the case as follows:

Troopers Burt Blue and Travis Alewine observed

Appellant speeding; the radar reflected that Appellant

was driving 80 miles per hour. The speed limit was 60

miles per hour. The troopers made a U-turn, caught up to

Appellant's vehicle, and activated the emergency lights

on their patrol car. Appellant pulled into the parking

lot of a small store. When Trooper Blue approached, he

detected the odor of alcohol coming from the car, and he

also smelled alcohol on Appellant when he talked to him.

Trooper Blue signaled to Trooper Alewine to indicate that

"somebody had been drinking in this car." Trooper Blue

asked Appellant for his driver's license and insurance,

but Appellant did not "have either one." Trooper Blue

noticed that Appellant's eyes were red and glazed and

that his speech was slurred. Appellant admitted that he

had drunk two 24-ounce beers. Additionally, when asked to

step out of his vehicle, Appellant was "unsteady on his

feet." Appellant refused to participate in any field

sobriety tests, including tests on his eyes that he could

perform while lying down, because of a knee injury.

Appellant was arrested for driving while intoxicated and

transported to the local hospital to have his blood

drawn. A medical technologist drew the blood, and a

forensic scientist later determined that Appellant's

Case 4:15-cv-00076-Y Document 23 Filed 05/09/16 Page 3 of 7 PagelD 871

blood alcohol concentration was 0.12.

(Id., Mem. Op. 2, ECF No. 10-5.)

II. ISSUES

In one ground for relief, Petitioner claims that the blood

draw was illegally taken without his consent or a warrant pursuant

to § 724.012(b) (3) (B),' due to his prior DWI convictions, thus the

trial court's denial of his motion to suppress "the illegally

obtained blood draw evidence" and his trial counsel's failure to

preserve the issue for appeal violated his right to federal due

process under the Fourth, Fifth, Sixth and Fourteenth Amendments.

(Pet. 6 & Pet'r's Mem. 10, ECF Nos. 1 & 10.)

III. RULE 5 STATEMENT

Respondent does not believe that the petition is barred by

'Under § 724.012(b) (3) (B),

(b) A peace officer shall require the taking of a specimen of

the person's breath or blood under any of the following

circumstances if the officer arrests the person for an offense under

Chapter 49, Penal Code, involving the operation of a motor vehicle

and the person refuses the officer's request to submit to the

taking of a specimen voluntarily:

(3) at the time of the arrest, the officer possesses or

receives reliable information from a credible source that the

person:

(B) on two or more occasions, has been previously

convicted or placed on community supervision for an offense under

Section 49.04 [DWI]

TEX. TRANSP. CODE ANN. § 724.012(b) (3) (B) (West 2011).

Case 4:15-cv-00076-Y Document 23 Filed 05/09/16 Page 4 of 7 PagelD 872

successiveness, the statute of limitations, or a failure to exhaust

state-court remedies. (Resp't's Answer 5, ECF No. 11.)

IV. DISCUSSION

A. Legal Standard for Granting Habeas Corpus Relief

A § 2254 habeas petition is governed by the heightened

standard of review provided for by the Anti-Terrorism and Effective

Death Penalty Act (AEDPA)

See 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 Supreme court precedent or that

is based on an unreasonable determination of the facts in light of

the record before the state court. Harrington v. Richter, 562 U.S.

86, 100-01 (2011); 28 U.S.C. § 2254 (d) (l)-(2) . This standard is

difficult to meet but "stops short of imposing a complete bar on

federal court relitigation of claims already rejected in state

proceedings." Harrington, 562 U.S. at 102.

Additionally, the statute requires that federal courts give

great deference to a state court's factual findings. Hill v.

Johnson, 210 F. 3d 481, 485 (5th Cir. 2000)

Section 2254 (e) (1)

provides that a determination of a factual issue made by a state

court shall be presumed to be correct. The petitioner has the

burden of rebutting the presumption of correctness by clear and

convincing evidence. See 28 U.S.C. § 2254(e) (1); Miller-El v.

Case 4:15-cv-00076-Y Document 23 Filed 05/09/16 Page 5 of 7 PagelD 873

Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S.

362, 399 (2000)

Typically, when the Texas Court of Criminal

Appeals denies relief in a state habeas-corpus application without

written opinion, as in this case, it is an adjudication on the

merits, which is entitled to the presumption. See Singleton v.

Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943

S.W.2d 469, 472 (Tex. Crim. App. 1997)

Under these circumstances,

a federal court may assume the state court applied correct

standards of federal law to the facts, unless there is evidence

that an incorrect standard was applied, and imply fact findings

consistent with the state court's disposition. Townsend v. Sam,

372 U.S. 293, 314 (1963)2; Catalan v. Cockrell, 315 F.3d 491, 493

n.3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th

Cir. 2001)

With these principles in mind, the Court addresses

Petitioner's claims.

B. Discussion

Petitioner raised his current claims, among others, in his

state habeas application and, based on the record, the habeas court

found and concluded:

After having reviewed the pleadings and instruments on

file in Cause 14427, The State of Texas vs. Brian Keith

Edwards, and the petition on file in this cause, the

Court is of the opinion and does hereby find that trial

counsel was not ineffective. All other grounds raised by

Applicant either were or could have been raised on direct

2The standards of Townsend v. Sain have been incorporated into 28 U.S.C.

§ 2254 (d) Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981)

Case 4:15-cv-00076-Y Document 23 Filed 05/09/16 Page 6 of 7 PagelD 874

appeal. Accordingly, the Court finds that there are no

controverted, previously unresolved facts material to the

legality of the Applicant's confinement.

(Adm. R., Writ WR-82,234-01, 63, ECF No. 10-24.) In turn the Texas

Court of Criminal Appeals denied the application without written

order. Accordingly, this Court may assume the state courts applied

correct standards of federal law to the facts, absent evidence that

an incorrect standard was applied, and infer fact findings

consistent with the state courts' disposition.

Underlying Petitioner's claims is his belief that the drawing

of his blood was an unconstitutional search and seizure pursuant to

the Supreme Court's decision in Missouri v. McNeely,

S. Ct. 1552 (.2013)

U.S.

133

In McNeeley, a plurality of the court held that

the need for a warrant to obtain blood in connection with an arrest

for DWI must be determined on a case-by-case basis under the

totality of the circumstances. The court observed that the fact that

alcohol is metabolized does not create per se exigent circumstances.

Instead, the constitutionality of a warrantless blood-alcohol test

is to be determined on the facts of each case.

Petitioner had the opportunity to litigate his claim of an

unlawful search and seizure in state court through the habeas-corpus

procedure. Therefore, this claim is barred from federal habeas

review. Stone v. Powell, 428 U.S. 465, 494 (1976)

Further, McNeely

3The state habeas record is not paginated; thus, the pagination in the ECF

header is used.

Case 4:15-cv-00076-Y Document 23 Filed 05/09/16 Page 7 of 7 PagelD 875

was decided in 2013 after Petitioner's conviction. Trial counsel

cannot be deemed ineffective for failing to anticipate a case

decided after his conviction. "[T]here is no general duty on the

part of defense counsel to anticipate changes in the law

.if

United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009)

Petitioner fails to demonstrate deficient performance by trial

counsel. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984)

Thus, the state courts' determination of Petitioner's ineffectiveassistance claim comports with Strickland.

For the reasons discussed, the Court DENIES Petitioner's

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

and DENIES a certificate of appealability.

SIGNED May 9, 2016.

)jfl41m,

TERRJR. MENS

UNITED STATES DISTRICT JUDGE

Additional material

from this filing is

available in the

Clerk's Off ice.

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