Petition for Writ of Certiorari — Steve Montrell Williams, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefDec 1, 2017

Ask Donna

What actually matters in this document.

Text

Filed 06/20/2016 Page 1 of 8

Cse 6:15-cv-00108 Document U

IN THE UNITED STATES .DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

VACO DIVISION

STEVE MONTRELL WILLIAMS,

TD.CJ No. 0175789.0,

Petitioner,

WILLIAM STEPHENS,

Director, Texas Department .of

Criminal Justice, Correctional.

Institutions Division,

Respondent.

CIVIL ACTION NOW-15-CV-1O8

§:

J4Ø

Petitioner Steve Montrell Williams ("Petitioner"), proceeding

pro se and. in,

forma pauperis, filed the instant action pursuant to 28 U.S.C. § 2254

. After

reviewing the United States Magistrate Judge's Report and Recommendation

and Petitioner's Objections thereto de nov, the Court finds that the Repo

rt and

Recommendation shoUld be ADOPTED and the petition DISMISSED.

Facua1 and F:ocedura

ory

Petitioner is th the custody of the Texas Department of Criminal Justice,

Judicial

Correctional Institutions: Division as a. result of a judgment from the 19th

District Court of McLennan County1 Texas Doc. 1 at a A jury found

Petitioner

nced to

guilty of aggravated robbery on September 1.4, 2011, and he was sente

ls confirmed

twenty years' imprisonment.. Id The Seventh District Court of Appea

Case 6:15-cv-00108 Document 11

Filed 06/20/2016 Page 2 of 8

Petitioner's conviction on appeal. Id. at 3. The Texas Court of Criminal Appeals

subsequently denied Petitioner's petition for discretionary review and his state

habeas corpus action without written order. Id. In the case at hand, Petitioner

raises two claims: (1) actual innocence; and (2) violation of due process because

the state courts denied his state habeas corpus action without sufficient written

rulincis. Id. it 6.

II.

Standard of Review

De Novo Review of Petitioner's Objections

Parties may file objections to a Magistrate Judge's Report and

Recommendation. However, a party filing objections must specifically identify

those findings or recommendations to which the objections are being made. The

Court need not consider frivolous, conclusive, or general objections. See Battle

U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to

file

written objections to the proposed findings and recommendations contained in

the Report and Recommendation within fourteen days after the party is served

with a Copy of it shi bar th2 -,party froi a do, novo

ad, except upon

grounds of plain error, shall bar the party from appellate review of unobjected-to

proposed factual findings and legal conclusions the Court accepts. See

U.S.C. § 636(b)(1)(C); Thomas v. Am, 474 U.S. 140, 150-53 (1985).

Here, on April 7, 2016, the Magistrate Judge issued a Report and

Recommendation, which recommended that Petitioner's petition be denied. Doc.

Filed 06/20/2016 Page 3 of 8

Case 6:15-cv-00108 Document 11

7 at 9. The Court granted Petitioner an extension of time to file his objections,

and on May23, 2016, the Court received Petitioner's objections to the Report

and Recommendation prior to the Court-imposed deadline. Doc. 10.

Consequently, the Court reviews de novo the Report and Recommendation's

findings and recommendations to which Petitioner specifically objected. See 28

U.S.C. § 636(b)(1).

The Antiterrorism and Effective Death Penalty Act ("AEDPA")

The AEDPA governs this case. See 28 U.S.C. § 2254; see also Lindh v.

Murphy, 521 U.S. 320, 336 (1997) (holding that the AEDPA applies to noncapital

habeas corpus cases filed after its effective date of April 24, 1996). The AEDPA

"substantially restricts the scope of federal review of state criminal court

proceedings." Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). In

the AEDPA seeks to prevent "federal habeas 'retrials'

short,

to ensure that state-

court convictions are given effect to the extent possible under the law." Bell

Cone, 535 U.S. 685, 693 (2002). Accordingly, a habeas petitioner under the

AED'A has the burden to prov his eniemeiii to reiiGc. M;ntya, 228 F.3d

405.

The applicability of § 2254(d)(1)—(2) is limited to claims that were

adjudicated "on the merits in state-court proceedings." 28 U.S.C. § 2254(d). The

term of art "on the merits" refers to whether a state-court's disposition of a

habeas petition was substantive as opposed to procedural. Green v. Johnson,

Filed 06/20/2016 Page 4 of 8

Case 6:15-cv-00108 Document 11

116 F.3d 1115, 1121(5th Cir. 1997). As the Texas Court of Criminal Appeals has

explained, under Texas law, denial of a state habeas petition, rather than

dismissal, indicates that the state-court's resolution of the petitioner's claims was

a substantive adjudication "on the merits." Salazar v. Dretke, 419 F.3d 384, 39899 (5th Cir. 2005); Miller v. Johnson,. 200 F.3d 274, 281 (5th Cir. 2000).

fr:decsion i contrary to !ear1'j established federal !aw "if the state-court

arrives at a conclusion opposite to that reached by [the Supreme Court] on

question of law or if the state court decides a case differently than [the] Court has

on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S.

362,

413 (2000). Alternatively, a habeas petitioner may demonstrate that a state-court

decision was an unreasonable application of federal law under § 2254(d)(1)

"the state-court identifies the correct governing legal principle

but

unreasonably applies that principle to the facts of the prisoner's case."

Id.

However, to be unreasonable, a state-court's decision must be more than merely

incorrect. See Gardner v. Johnson, 247 F.3d 551, 559-60 (5th Cir.

2001). A

reversal is not required unless the "state-court decision applis the correct lega

rule to a given set of facts in a manner that is so patently incorrect as to

'unreasonable." Id.; see Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.

2000)

(noting that the standard for federal habeas relief is one of objective

reasonableness).

Additionally, in reviewing a state prisoner's federal habeas petition, a

Case 6:15-cv-00108 Document 11

Filed 06 /20/2016 Page 5 of 8

"determination of a factual issue made by a state court shall be presumed to be

correct," and a petitioner "shall have the burden of rebutting the presumption by

clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Consequently, a

petitioner "must be diligent in developing the record and presenting all claims of

constitutional error." Williams, 529 U.S. at 437. And "[i]f the prisoner fails to do

so, p2254(e) prohihits an evidentiary hearing to develop the relevant claims in

federal court, unless the statute's other stringent requirements are met." Id.

Ill.

Analysis

Actual Innocence

Petitioner offers an affidavit ostensibly from his co-defendant Arrack

Mathews ("Mathews"), who states that he committed the robbery and that police

detectives coerced him to implicate the innocent Petitioner. Doe. I at 6, 14, 2223. Petitioner objects to the Magistrate Judge's finding that the latest Petitioner

would have discovered that Mathews lied in his statement about Petitioner's

involvement in the crime would have occurred at trial (i.e., when Petitioner had

the opportunity to confront Mathews during cross-examination). According to

Petitioner's objection, he did not become cognizant of Mathews's false

implication of him until far after trial—apparently not until he secured the affidavit

from Mathews. Doe. 10 at 5.

However, Petitioner's objection contradicts his claim. On one hand,

Petitioner indicates that he did not know Mathews lied about his involvement in

Case 6:15-cv-00108 Document 11

Filed 06/20/2016 Page 6 of 8

hand,

the crime until he "discovered" the March 5, 2014 affidavit. But on the other

ent at

Petitioner's objection admits that he was aware of Mathews's false statem

trial and the affidavit merely shed tight as to the reason Mathews proffe

red the

false statement. See Id.

The Magistrate Judge reasoned that Petitioner "would necessarily have

known at trial that [Math9ws'sl statement was false and could have

cross-

examined Mathews accordingly." The Court agrees. Petitioner's trial was

the

latest he would have discovered that Mathews was falsely implicating him

and

his contention that he did not discover the false statement until March 4,

2014—

the date of the affidavit—defies logic.

Regardless, the Court agrees that Mathews's affidavit is not reliable.

cion by the

"Recanting affidavits and witnesses are viewed with extreme suspi

courts." May v. Collins, 955 F.2d 299, 314 (5th Cir. 1992) (quoting

United States

omitted)).

v. Adi, 759 F.2d 404, 408 (5th Cir. 1985) (emphasis added, brackets

Indeed, "'[c]ourts treat recantations and claims of perjury with great skept

even under the best of circumstances." May, 955 F.2d at 314 (quoting

icism

U.S. ex

rel. Jones v. DeRobertis, 766 F.2d 270, 272 (7th Cir. 1985)).

Here, the Texas Court of Criminal Appeals denied Petitioner relief in his

ication

state habeas corpus application' without written order, which is an adjud

ton

on the merits and thus is entitled to a presumption of correctness. See Single

case search,

Ex Paite Williams, WR-81,328-01, Texas Judicial Branch online

coscca

&coa=

28-01

http:/ANww.search.txcourts.gov/Case.aspx?cn=WR-81,3

Case 6:15-cv-00108 Document 11

Filed 06/20/2016 Page 7 of 8

V. Johnson, 178 F.3d 381, 384 (5th Cir. 1999). The Report and Recommendation

accurately, explains that the Texas Court of Criminal Appeals' denial of relief was

an implicit conclusion that Mathews's affidavit lacked trustworthiness

and

ning to

credibility." Doc. 7 at 8. The Court overrules Petitioner's objection pertai

his actual innocence claim because he failed to overcome the presumptio

n of

correctness by clear and convincing evidence. See May, 955 F.2d at 313-14.

Due Process

Although intertwined with Petitioner's actual innocence claim, he objects

was

the Magistrate Judge's conclusion that his state habeas corpus application

adjudicated on the merits because the Texas Court of Criminal Appeals

denied

relief without written order. Doc. 10 at 8-10. Petitioner asserts that he

did not

receive due process because the Texas Court of Criminal Appeals

did not

address his constitutional claims. Id. at 8.

Here, Petitioner is incorrect. First, as discussed supra, the Texas

Court of

Criminal Appeals' silent denial of his state habeas corpus application

adjudication on the merits. See Singleton, 178 F.3d at 384. "In

jurisprudence,

is an

Texas writ

a denial of relief rather than a 'dismissal' of the claim by the

Court of Criminal Appeals disposes of the merits of the claim." Id.

Furthermore, Petitioner's claims of infirmities in the state habeas

proceedings are not cognizable on federal habeas review. Ruddy.

Johnson, 256

s do no

F.3d 317, 319-20 (5th Cir. 2001) ("[I]nfirmities in state habeas proceeding

Filed 06/20/2016 Page 8 of 8

Q ase 6:15-cv-00108 Document ii

constitute grounds 'for relief In.: federal court:') (internal quotation marks omitted).

"That is because an attack on the state iabeas proceeding is an attack on .a

proceeding collateral to the detention and not the detention itself" Id.. at 320

(citing Nichols v Scott, 69 F 3d 1255, 1275 (5th Cir. 1995)) Therefore, to the

extent that Petitioner challenges the pro.riety of the state's habeas corpus

.prbceerlinqs said cft..flenge is without merit. Petitioner's due process rights were

not violated, and any objections to the conttiary• are overruled.

1V1 Conclusion

The Court has determined that the Magistrate Judge's findings and

recommendation should .be ADOPTED, AcEordingly, it is

ORDERED that Petitioner's objections are OVERRULED. It is further

ORDERED that the Instant petition Is DENIED and the case DISMISSED.

It is further

ORDERED that anyrelief not specifially granted in this Order is DENIED..

SIGNEDthis -2-0 day of June, 2•016.

Y-L

WALTER S. SMITH, JR.

'UNITEb. STATES DISTRICT JUDGE

E;]

...

,...

Case 6:15-cv-00108-Rp Document 12 Filed 06/20/16 Page 1 of 1

An4çn JPmz cl2c)

Jiip,.ntin s ('iv,I race

UNITED STATES DISTRICT COURT

WESTERN

TEXAS

DISTRICT OF

JUDGMENT IN A CIVIL CASE

STEVE MONTRELL WILLIAMS

Plaintiff,

WILLIAM STEPHENS

W-15-CV-00108

Case Number:

Defendants.

O Jury Verdict. This action came before the Court for a trial by jury. The issued have been tried and

rendered its verdict.

X Decision by Court. This action came to trial or hearing before the Court. The issues have

a decision has been rendered.

been tried or heard and

IT IS ORDERED AND ADJUDGED

ORDERED that the Magistrate Judge's findings and recommendation are ADOPTED.

ORDERED that Petitioner's objections are OVERRULED.

ORDERED that the instant petition is DENIED and the case is DISMISSED.

ORDERED that any relief not specifically granted in this Order is DENIED.

6/20/2016

Date

Jeannette J. Clack

Clerk

(By) Deputy Clerk

the jury has

49)

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 1 of 10

FILED

IN THE UNITED STATES DISTRICT COURT APR 0 7 2016

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

STEVE MONTRELL WILLIAMS,

TDCJCID No. 01757890,

Petitioner,

WESTER

F TEXAS

DEPUTY

CIVIL ACTION NO. W- 15-CA-108

VS.

WILLIAM STEPHENS,

Director, Texas Department of

Criminal Justice, Correctional

Institutions Division,

Respondent.

REPORT AND RECOMMENDATION OF

THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE WALTER S. SMITH, JR.,

UNITED STATES DISTRICT JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28

U.S.C. § 636(b)(1)(c) and Rules 1(e) and 4(b) of Appendix C of the Local Rules of the

United States District Court for the Western District of Texas, Local Rules for the

Assignment of Duties to United States Magistrate Judges.

I. BACKGROUND AND STATEMENT OF THE CASE

Petitioner Steve Williams filed the instant action pursuant to 28 U.S.C. §

2254. He is before the Court pro se and in forma pauperis. He is in custody of the

Texas Department of Criminal Justice—Correctional Institutions Division ("TDCJ")

pursuant to a judgment from the 19th District Court of McLennan County, Texas in

court case number 2011-270C1A. Pet. at 2. The State charged Petitioner with

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 2 of 10

aggravated robbery. A jury found Petitioner guilty on September 14, 2011 and

sentenced him to twenty years of imprisonment. Petitioner appealed, and the

Seventh District Court of Appeals affirmed the conviction. Id. at 3. The Texas Court

of Criminal Appeals denied Petitioner's subsequent petition for discretionary

review. Petitioner then filed a state habeas corpus action that the Court of Criminal

Appeals denied without written order. Id.

In the instant case, Petitioner raises two claims:

Petitioner is actually innocent; and

The state courts denied Petitioner due process by denying his state

habeas corpus action without sufficient written rulings.

Pet. at 6. Pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases Under §

2254, the Court makes this Recommendation sua sponte, and the Court has not

ordered Respondent to file an answer.

II. DISCUSSION

Standard of Review

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which

governs this case, "substantially restricts the scope of federal review of state

criminal court proceedings." Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).

In short, the AEDPA seeks to .prevent "federal habeas 'retrials'.

. .

to ensure that

state-court convictions are given effect to the extent possible under the law." Bell v.

Cone, 535 U.S. 685, 693 (2002). Accordingly, a habeas petitioner under the AEDPA

has the burden to prove his entitlement to its relief. Montoya, 226 F.3d at 404. To

meet that burden, the AEDPA dictates:

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 3 of 10

An application for writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

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, or

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.

28 U.S.C. § 2254(d) (emphasis added).

By its plain terms, the applicability of section 2254(d) is limited to those

• claims which were adjudicated "on the merits in state court proceedings." 28 U.S.C.

• § 2254(d). The term of art "on the merits" refers to whether a state court's

disposition of a habeas petition was substantive as opposed to procedural. Green v.

Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). As the Texas Court of Criminal

Appeals has held, denial of a state habeas petition, rather than dismissal, indicates

that the state court's resolution of the petitioner's claims was a substantive

adjudication "on the merits." Salazar v. Dretke, 419 F.3d 384, 398-99 (5th Cir.

2005); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); Exparte Torres, 943

S.W.2d 469, 472 (Tex. Crim. App. 1997) (en banc) Mn our writ jurisprudence, a

'denial' signifies that we addressed and rejected the merits of a particular claim

while a 'dismissal' means that we declined to consider the claim for reasons

unrelated to the claim's merits.").

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 4 of 10

A decision is contrary to clearly established federal law, thus satisfying

section 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached

by [the Supreme Court] on a question of law or if the state court decides a case

differently than [the]. Court has on a set of materially indistinguishable facts."

Williams v. Taylor, 529 U.S. 362, 413 (2000). Alternatively, a habeas petitioner may

demonstrate that a state court decision was an unreasonable application of federal

law under section 2254(d)(1) "if the state court identifies the correct governing legal

principle.. but unreasonably applies that principle to the facts of the prisoner's

case." Id However, to be unreasonable, a state court's decision must be more than

merely incorrect. See Gardner v. Johnson, 247 F.3d 551, 559560 (5th Cir. 2001). A

reversal is not required unless the "state court decision applies the correct legal rule

to a given set of facts in a manner that is so patently incorrect as to be

'unreasonable." Id. see Montoya, 226 F.3d at 404 (noting that the standard for

federal habeas relief is one of objective reasonableness.); Neal v. Puckett, 286 F.3d

230, 24447 (5th Cir. 2002) (holding that under AEDPA, a state court's conclusion of

lack of prejudice, although incorrect, was not an unreasonable application of clearly

established federal law).

Additionally, in reviewing a state prisoner's federal habeas petition, "a

determination of a factual issue made by a State court shall be presumed to be

correct," and the petitioner "shall have the burden of rebutting the presumption by

clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Moreover, where the

petitioner:

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 5 of 10

has failed to develop the factual basis of a claim in State court

proceedings, the court shall not hold an evidentiary hearing on the

claim unless the applicant shows that—

(A) the claim relies on—

a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable; or

a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by

clear and convincing evidence that but for constitutional error, no

reasonable fact finder would have found the applicant guilty of the

underlying offense.

28 U.S.C. § 2254(e)(2).

Actual innocence

In his first claim, Petitioner asserts that he is actually innocent—he did not

commit the aggravated robbery for which he was convicted. Fed. Writ Pet. at 6. In

support of this claim, Petitioner offers an affidavit ostensibly from his co-defendant

Arrack Mathews, who claims that he committed the robbery and that police

detectives coerced him to implicate the innocent Petitioner. Pet. at 6, 14, 22-23.

A claim of actual innocence may take two forms in a petition for a writ of

habeas corpus, a Herrerra-type claim or a Sch]up-type claim. In Herrera v. Collins,

506 U.S. 390 (1993), the petitioner claimed that he was innocent, therefore his

sentence violated his 8th Amendment right to be free from cruel and unusual

punishment. Herrera claimed that even if the proceedings that resulted in his

conviction and sentence were entirely fair and error free, his innocence would

inherently render his execution a "constitutionally intolerable event." Schlup, 513

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 6 of 10

U.S. at 314, quoting Herrera, 506 U.S. at 419. The Fifth Circuit has held that this

sort of freestanding claim of actual innocence is not cognizable on federal habeas

review. Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir. 1992); Graves v. Cockrell,

351 F.3d 143, 151 (5th Cir. 2003); see also Dowhitt v. Johnson, 230 F.3d 733 (5th

Cir. 2000); Foster v. Quarterman, 466 F.3d 3591 367-68 (5th Cir. 2006); In re

Swearingen, 556 F.3d 344, 348 (5th Cir. 2009). Federal habeas courts sit to ensure

that individuals are not imprisoned in violation of the Constitution, not to correct

errors of fact. Herrera, 506 U.S. at 400. Thus, insofar as Petitioner raises a

freestanding actual innocence claim, his claim should be denied.

In Schlup v. Delo, 513 U.S. 298, 314 (1995), the petitioner's claim of actual

innocence served as a gateway to allow federal review on the merits of

constitutional claims otherwise procedurally barred. See also House v. Bell, 547

U.S. 518, 536-37 (2006). A Schlup-type claim requires the prisoner to present new,

reliable evidence that establishes "it is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable doubt." Schiup, 513 U.S. at

324, 327. A Schiup-type scenario typically arises from the discovery of credible

evidence that was not presented at trial and is discovered after the exhaustion of

available state remedies or the expiration of time limits to do so. Woodfox v. Cain,

609 F.3d 774, 793-794 (5th Cir. 2010); Schlup, 513 U.S. at 324.

If the prisoner successfully makes this threshold showing, then the federal

court may consider whether the prisoner's procedurally-barred constitutional claims

merit the granting of habeas relief. M. A Schiup-type claim of actual innocence does

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 7 of 10

not independently merit habeas relief, it merely serves as a means to secure habeas

review for other contitutiona1 errors. Id.

Here, Petitioner's actual innocence claim does not raise "new reliable

evidence" that was not presented at trial. Schlup, 513 U.S. 324. Petitioner offers a

March 5, 2014 affidavit (sworn, but unnotarized) of Arrack Mathews. Pet, at 22. In

the affidavit, Mathews claims that police detectives pressured him into signing a

statement that falsely implicated Petitioner. Petitioner argues, in effect, that he did

not discover until March 5, 2014, that his co-defendant lied in his statement about

Petitioner's involvement with the crime. Plaintiff would necessarily have known at

trial that the statement was false and could have cross-examined Mathews

accordingly. Plaintiffs "discovery" did not occur when he received the affidavit on

March 5, 2014; the factual predicate for his claim arose—at the latest—at trial.

Moreover, the affidavit is not reliable. "[AJffidavits which recant witnesses'

trial testimony are viewed with extreme suspicion by the courts." Baidree v.

Johnson, 99 F.3d 659 (5th Cir. 1996)(cert. denied, 590 U.S. 1194 (1997) citing May

v. Collins, 955 F.2d 299, 314 (5th Cir. 1992); Summers v. Dretke, 431 F.3d 861, 878

(5th Cir. 2005); Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996). Petitioner

presented this affidavit to the state habeas court, which denied the claim without a

written order. Expazte Williams, WR-81,328-01, Texas Judicial Branch online case

search, http ://www.search.txcourts, gov/Case.aspx?cn=WR-8 1,328-0 1&coa=coscca.

Again, when the Texas Court of Criminal Appeals denies relief in a state

habeas corpus application without written order, it is an adjudication on the merits

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 8 of 10

which is entitled to the presumption of correctness. Singleton v. Johnson, 178 F.3d

381, 384 (5th Cir. 1999); Exparte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App.

1997). The state court implicitly concluded that the witness's recantation lacked

trustworthiness and credibility. This finding is entitled to a presumption of

correctness, and Petitioner has failed to offer the clear and convincing evidence

necessary to overcome that presumption. See May v. Collins, 955 F.2d 299, 313-14

(5th Cir. 1992) (overruled on other grounds, Duncan v. Cockrell, 70 F. App'x 741

(5th Cir. Jul.3, 2003)). Accordingly, the Court should deny this claim.

Denial of Due Process

In his second claim, Petitioner alleges that the state courts denied him due

process when "the district clerk transmitted the 11.07 writ to the Court of Criminal

Appeals without an answer by the District Attorney or findings of fact or

conclusions of law. The Court of Criminal Appeals denied without written order.

The Constitutional claims have never been heard by any State court." Pet. at 6.

First, the fact that the state courts did not produce a written order does not mean

that the court did not address Petitioner's claim; the Court of Criminal Appeals'

denial of the 11.07 writ application is an adjudication on the merits, which is

entitled to the presumption of correctness. Singleton v. Johnson, 178 F.3d 381, 384

(5th Cir. 1999); Exparte Torres, 943 S.W.2d,469, 472 (Tex. Crim. App. 1997).

Second, the Fifth Circuit has held that claims alleging infirmities in state

habeas proceedings do not constitute grounds for relief in federal court. Trevino v.

Johnson, 168 F.3d 173, 181 (5th Cir. 1999)(quoting Hallmark v. Johnson, 118 F.3d

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 9 of 10

1073, 1080 (5th Cir. 1997), cert. denied, Johnson v. Monroe, 522 U.S. 1003, (1997);

see Nichols v. Scott, 69 F. 3d 1255, 1275 (5th Cir. 1995) ("An attack on a state

habeas proceeding does not entitle the petitioner to habeas relief in respect to his

conviction, as it is an attack on a proceeding collateral to the detention and not the

detention itself.") (internal quotation marks omitted); Duff—Smith v. Collins, 973

F.2d 1175, 1182 (5th. Cir. 1992); Millard v. Lyna ugh, 810 F.2d 1403, 1410 (5th Cir.

1987) (same); Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984) (denying

petitioner a certificate of probable cause because "(ilnfirmities in state habeas

corpus proceedings do not constitute grounds for federal habeas relief').

Accordingly, insofar as Petitioner challenges the propriety of the state's habeas

corpus proceedings, the claim should be denied.

III. RECOMMENDATION

It is the recommendation of the undersigned that the instant petition be

DENIED. The parties may wish to file objections to this Report and

Recommendation. A party filing objections must specifically identify those findings

or recommendations to which objections are being made. The District Court need

not consider frivolous, conclusive, or general objections. See Battle v. United States

Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written

objections to the proposed findings and recommendations contained in this Report

within fourteen (14) days after the party is served with a copy of the Report shall

bar that party from de novo review by the District Court of the proposed findings

and recommendations in the Report and, except upon grounds of plain error, shall

Case 6:15-cv-00108-RP Document 7 Filed 04/07/16 Page 10 of 10

bar the party from appellate review of unobjected-to proposed factual findings and

legal conclusions accepted by the District Court. See 28 U.S.C. 636(b)(

1)(C);

Thomas v. Am, 474 U.S. 140,150-53 (1985); Douglass v. United Service

s Auto.

Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

SIGNED this

7 day of April, 2016.

rc.

STATES MAGISTRATE JUDGE

NCS

Filed 07/31/2017 Page 1 of 3

Case 6:15-cv-00108 Document 21

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50930

USDC No, 6:15-CV-108

Certified as a true copy and issued

as the mandate on Jul 31, 2017

STEVE MONTRELL WILLIAMS,

Attest:

Clerk, U.S. burt of Appe, Fifth Circuit

Petitioner-Arrneflant

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court for the

Western District of Texas, Waco

Steve Montrell Williams, Texas prisoner # 1757890, seeks a certificate of

appealability (COA) so that he may appeal the district court's denial of his 28

U.S.C. § 2254 application by which Williams challenged his jury conviction of

aggravated robbery and his sentence of 20 years in prison. Williams argues

that he is actually innocent, as demonstrated by his codefendant's recently

written affidavit recanting his testimony and asserting that he testified

against Williams because he was threatened by a police detective that he would

otherwise face life in prison. Williams further argues that his state habeas

proceeding did not comport with due process.

lof3

Filed 07/31/2017 Page 2 of 3

Case 6:15-cv-00108 Document 21

No. 16-50930

Before he can appeal, Williams must obtain a COA, which can be issued

only if he "has made a substantial showing of the denial of a constitutional

right." 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Williams has not made that showing because he has not "demonstrat[ed] 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

adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at

327. Accordingly, a COA is DENIED.

Is! Leslie H. Southwick

LESLIE H. SOUTHWICK

UNITED STATES CIRCUIT JUDGE

20f3

Filed 07/31/2017 Page 3 of 3

Case 6:15-cv-00108 Document 21

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

TEL. 504-310-7700

LYLE W. CAYCE

CLERK

600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130

July 31, 2017

Ms. Jeannette Clack

Western District of Texas, Waco

United States District Court

800 Franklin Avenue

Waco, TX .76701

No. 16-50930

Steve Williams v. Lone Davis, Director

USDC No. 6:15-CV-108

Dear Ms. Clack,

Enclosed is a copy of the judgment issued as the mandate.

Sincerely,

LYLE W. CAYCE, Clerk

Renee S. McDonough, Deputy Clerk

504-310-7673

cc w/encl:

Mr. Edward Larry Marshall

•Mr. Steve Montrell Williams

3 of 3

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130

September 05, 2017

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 16-50930

Steve Williams v. Lone Davis, Director

USDC No. 6:15-CV-108

Enclosed is an order entered in this case.

Sincerely,

LYLE W. CAYCE, Clerk

Renee S. McDonough, Deputy Clerk

504-310-7673

Mr. Edward Larry Marshall

Mr. Steve Montrell Williams

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50930

STEVE MONTRELL WILLIAMS,

Petitioner Appellant

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent Appellee

Appeal from the United States District Court for the

Western District of Texas, Waco

ON PETITION FOR REHEARING EN BANC

Before DENNIS, SOUTHWICKI and HIGGINSON, Circuit Judges.

PER CTJRIAM:

( )/ Treating the Petition, for Rehearing En Bane as a Motion for

Reconsideration, the Motion for Reconsideration is DENIED. No

member of the panel nor judge in regular active service of the court

having requested that the court be polled on Rehearing En Bane (FED

R. APP. P. and 5m dR. R. 35), the Petition for Rehearing En Banc is

DENIED.

( ) Treating the Petition for Rehearing En Bane as a Motion for

Reconsideration, the Motion for Reconsideration is DENIED. The court

having been polled at the request of one of the members of the court

and a majority of the judges who are in regular active service and not

disqualified not having voted in favor (FED R. APP. P. and 5TH CIR. R.

35), the Petition for Rehearing En Bane is DENIED.

ENTERD FOR THE COURT:

LL&

UNITED STATES CIRCUIT JUDGE

Additional material

from thi s filing m

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.