IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NATHANIEL GRANT DAUGHTRY §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-0217-P 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Nathaniel Grant Daughtry, appearing pro se, has filed an application for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should

be denied.

I.

Petitioner was convicted of robbery and sentenced to 25 years confinement. His conviction

and sentence were affirmed on direct appeal. Daughtry v. State, No. 11-01-00329-CR (Tex. App.--

Eastland, Sept. 18, 2003, no pet.). Petitioner also filed an application for state post-conviction relief.

The application was denied without written order. Ex parte Daughtry, No. 59,008-01 (Tex. Crim.

App. Nov. 10, 2004). Petitioner then filed this action in federal court.

II.

In two grounds for relief, petitioner contends that: (1) the evidence was insufficient to

support his conviction; and (2) the jury charge was defective.

A.

 

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The standard of review in federal habeas cases is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214 (1996).

Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may

grant habeas relief 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; or

(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. 

28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "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, 120 S.Ct. 1495, 1523, 146 L.Ed.2d

389 (2000). An unreasonable application of clearly established federal law is one in which "the state

court identifies the correct governing legal principle from [the] Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523; see also Pondexter

v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated

differently, "a federal court may grant relief when a state court has misapplied a 'governing legal

principle' to 'a set of facts different from those of the case in which the principle was announced.'"

Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), quoting

Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). 

With respect to mixed questions of fact and law, a federal habeas court must give deference

to state court findings unless they are "based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363

 

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(5th Cir.), cert. denied, 121 S.Ct. 508 (2000). The resolution of factual issues by the state court is

presumptively correct and will not be disturbed unless the petitioner rebuts the presumption by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1).

B.

Petitioner first contends that the evidence was insufficient to prove that he "knowingly and

intentionally caused bodily injury to the complainant" in the course of committing theft--an essential

element of robbery under Texas law. While petitioner admits to stealing a VCR from the Wilshire

Baptist Church, he denies any intent to injure Melinda Patino, a custodian who encountered

petitioner as he tried to leave the building.

1.

To the extent petitioner challenges the factual sufficiency of the evidence to support his

robbery conviction, such a claim is not cognizable under 28 U.S.C. § 2254. Under Texas law,

intermediate appellate courts have the authority to review fact questions in criminal cases. Clewis

v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). This "factual sufficiency" review of the

evidence is broader than a "legal sufficiency" challenge under Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Id. Instead of viewing the evidence in the light most

favorable to the prosecution and determining whether "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt," a factual sufficiency inquiry views

all the evidence to determine whether the verdict "is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust." Pruitt v. Cockrell, 2001 WL 1115339 at *13 (N.D.

Tex. Sept. 14, 2001), quoting Clewis, 922 S.W.2d at 129. The power of state appellate courts to

review the factual sufficiency of the evidence derives from Texas statutory and constitutional

authority. Id. at *14, citing Clewis, 922 S.W.2d at 129-30, and Bigby v. State, 892 S.W.2d 864, 874-

 

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 1

 Respondent counters that petitioner's legal sufficiency claim is procedurally barred from federal habeas

review because the issue was not raised on direct appeal. (See Resp. Ans. at 6-8). Although a federal court may not

consider the merits of a habeas claim if a state court has denied relief due to a procedural default, the state court opinion

must contain a "plain statement" that its decision rests on adequate and independent state grounds. Harris v. Reed, 489

U.S. 255, 262, 109 S.Ct 1038, 1043, 103 L.Ed.2d 308 (1989); Smith v. Collins, 977 F.2d 951, 955 (5th Cir. 1992), cert.

denied, 114 S.Ct. 97 (1993). Here, the state habeas court considered petitioner's legal sufficiency claim on the merits.

(See St. Hab. Tr. at 36-37, ¶ 1). This court will do the same.

75 (Tex. Crim. App. 1994), cert. denied, 115 S.Ct. 2617 (1995). There is no corresponding right

of review under the United States Constitution. Id.; see also Daisy v. Dretke, 2004 WL 3167743 at

*2 (N.D. Tex. Dec. 21, 2004); Tanksley v. Dretke, 2004 WL 1109458 at *2 (N.D. Tex. May 13,

2004), rec. adopted, 2004 WL 1238224 (N.D. Tex. Jun. 3, 2004); Warren v. Cockrell, 2002 WL

32167729 at *2 (N.D. Tex. Dec. 30, 2002); Cupples v. Cockrell, 2002 WL 1155826 at *5 (N.D.

Tex. May 29, 2002); Osteen v. Cockrell, 2002 WL 356568 at * 7 (N.D. Tex. Feb. 28, 2002).

2.

Petitioner appears to argue that the evidence was legally insufficient to prove that he

intended to cause bodily injury to another while in the course of committing theft.1

 Federal habeas

review of a legal sufficiency claim is extremely limited. A federal court may not disturb a state

criminal conviction unless no rational trier of fact could have found the elements of the offense

beyond a reasonable doubt. Jackson, 99 S.Ct. at 2789; Gibson v. Collins, 947 F.2d 780, 781 (5th

Cir. 1991), cert. denied, 113 S.Ct. 102 (1992). The evidence must be viewed in the light most

favorable to the verdict. Jackson, 99 S.Ct. at 2789; Gibson, 947 F.2d at 781. This standard of

review applies in both direct and circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282,

287 (5th Cir.), cert. denied, 111 S.Ct. 265 (1990).

Federal courts are bound by state statutes and case law in determining the elements of an

offense. Foy v. Donnelly, 959 F.2d 1307, 1314 (5th Cir. 1992). Under Texas law, a person commits

the offense of robbery if, in the course of committing theft and "with the intent to obtain or maintain

 

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control of the property, he . . . intentionally, knowingly, or recklessly causes bodily injury to

another." TEX. PENAL CODE ANN. § 29.02(a)(1) (Vernon 2003). 

Petitioner was charged with knowingly and intentionally causing bodily injury to Melinda

Patino, "by pushing said complainant with a bag and defendant's hands." (St. App. Tr. at 2). At

trial, Patino testified that petitioner pushed her with his hand and a bag containing the stolen VCR.

(St. Trial Tr. at 24-25). Patino lost her balance and started to fall. (Id. 25-26). When Patino called

for help, petitioner told her to "shut up, don't say anything, because if you say something I will come

back to hurt you." (Id. at 28). Patino testified that she was scared and emotionally upset as a result

of this incident. She also suffered physical injuries to her wrist, shoulder, and leg. (Id. at 33-35).

Although petitioner contends that he accidently bumped into Patino and never had any intent to harm

her, the evidence presented at trial was more than sufficient to enable the jury to find otherwise.

This ground for relief is without merit and should be overruled.

C.

Petitioner also complains that the jury charge was defective. At issue are two instructions

contained in the charge. One instruction informs the jury that "[a] person's intent may be inferred

by acts done, words spoken, or by both." (St. App. Tr. at 34). The other instruction provides, "It

is not required that the prosecution prove guilt beyond all possible doubt; it is required that the

prosecution's proof excludes all 'reasonable doubt' concerning defendant's guilt." (Id. at 37).

According to petitioner, the first instruction was "biased" against him and the second instruction

"watered down" the requirement of proof beyond a reasonable doubt. 

To the extent petitioner attempts to state a federal constitutional claim, respondent properly

points out that he is procedurally barred from doing so. A federal court may not consider the merits

of a habeas claim if the petitioner has failed to exhaust state remedies and the state court would

 

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 2 This statute provides, in pertinent part:

If a subsequent application for writ of habeas corpus is filed after final disposition

of an initial application challenging the same conviction, a court may not consider

the merits of or grant relief based on the subsequent application unless the

application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been

presented previously in an original application or in a previously considered

application filed under this article because the factual or legal basis for the claim

was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the United

States Constitution no rational juror could have found the applicant guilty beyond

a reasonable doubt.

TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a) (Vernon 2005). 

 3 To the extent petitioner contends the jury instructions are improper under Texas law, such a claim is not

cognizable on federal habeas review. See Beazley v. Johnson, 242 F.3d 248, 261 (5th Cir.), cert. denied, 122 S.Ct. 329

(2001).

likely dismiss a successive writ under Tex. Code. Crim. Proc. art. 11.07, § 4.2 See Coleman v.

Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640 (1991) (procedural

default occurs when prisoner fails to exhaust available state remedies and "the court to which the

petitioner would be required to present his claims in order to meet the exhaustion requirement would

now find the claims procedurally barred"); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.), cert.

denied, 118 S.Ct. 1793 (1998); Nobles v. Johnson, 127 F.3d 409, 422 (5th Cir. 1997), cert. denied,

118 S.Ct. 1845 (1998). Such is the case here. Although petitioner challenged the jury charge on

direct appeal and state collateral review, he did so on state grounds. Petitioner never argued that the

instruction allowing the jury to infer intent and the reasonable doubt instruction violated any federal

constitutional right. See Deter v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (in order to satisfy

exhaustion requirement, "[a]n applicant must fairly apprise the highest court of his state of the

federal rights which were allegedly violated") (emphasis added). The court finds that a Texas court,

presented with these claims for the first time in a successive writ, would likely find them barred

under article 11.07. Consequently, federal habeas relief is not proper.3

 

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RECOMMENDATION

Petitioner's application for writ of habeas corpus should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

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 Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: June 8, 2005.

 

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