IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CALVIN PAUL WALKER, §

§

Petitioner, §

§

VS. § NO. 4:06-CV-036-A

§

NATHANIEL QUARTERMAN, §

Director, Texas Department §

of Criminal Justice, §

Correctional Institutions §

Division, §

§

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the above-captioned action wherein

Calvin Paul Walker ("Walker") is petitioner and Nathaniel

Quarterman, Director, Texas Department of Criminal Justice,

Correctional Institutions Division, is respondent. This is a

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

2254. On October 26, 2006, the United States Magistrate Judge

issued his proposed findings, conclusions, and recommendation,

and ordered that the parties file objections, if any, thereto by

November 16, 2006. Petitioner timely filed his written

objections, to which respondent has not made any further

response.

In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the

Federal Rules of Civil Procedure, the court makes a de novo

determination of those portions of the proposed findings or

recommendations to which specific objection is made. United

 

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States v. Raddatz, 447 U.S. 667 (1980). The court need not

consider any nonspecific objections or any frivolous or

conclusory objections. Battle v. United States Parole Comm'n,

834 F.2d 419, 421 (5th Cir. 1987).

I.

Background

According to the state appellate record, on the evening of

December 7, 2000, Walker and two other men went into a motel room

occupied by the victim, Sarah Burns ("Burns"), and her dog. When

Walker entered the room he kicked the dog which upset Burns. One

of the men left the motel alone to get food and shortly after the

other man, K Dog, took the dog and left, leaving Burns and Walker

alone in the room. According to testimony given by Burns, Walker

proceeded to wrap a cord around her neck and began to strangle

her. She attempted to put her hand under the cord to break it

but was unsuccessful and Walker continued to strangle her until K

Dog pounded on the window and yelled that the cops were there.

Walker opened the motel door and while the police officer was

attending to Burns, both Walker and K Dog fled the scene. Burns

later identified Walker as her attacker in a photographic lineup. 

In December of 2001 Walker was tried and convicted by a jury

of attempted murder of Burns and was sentenced to life in prison. 

The Court of Appeals for the Second District of Texas affirmed

the conviction in June of 2003 and Walker's petition for

discretionary review of the affirmation was refused. On December

14, 2005, the Texas Court of Criminal Appeals denied Walker's

 

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state application for writ of habeas corpus. On January 5, 2006,

Walker filed his federal petition for writ of habeas corpus

("petition") in this court. 

Walker's petition alleged several violations of his right to

effective assistance of counsel, specifically, that Walker's

attorney: (1) advised Walker not to testify at trial which

resulted in a jury charge without a lesser included offense, (2)

did not request that the jury be instructed on lesser included

offenses or "sudden passion," (3) did not subpoena favorable

witnesses, and (4) did not request that the jury be instructed

that Walker's failure to testify could not be used to infer

guilt. Walker claims that such conduct amounted to a

constitutional violation of his Sixth Amendment right to counsel.

After reviewing Walker's claims, the magistrate judge found

that the petition should be denied. Walker, in turn, makes only

two specific objections to this finding. First, Walker urges

that his lawyer's failure to affirmatively request a lesser

included offense instruction was a sufficient ground for

disturbing his conviction. See Pet'r's Objections 1-3. Second,

Walker argues that his lawyer should have requested a "suddenpassion" jury instruction and that the failure to do so

prejudiced Walker. See Pet'r's Objections 3-7. 

II.

Analysis

To prevail on an ineffective assistance of counsel claim, 

 

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petitioner must show, (1) that his counsel's performance fell

below an objective standard of reasonableness, and (2) that there

is a reasonable probability that, but for his counsel's

unprofessional errors, the result of the proceedings would have

been different. Strickland v. Washington, 466 U.S. 668, 687

(1984). Both prongs of the Strickland test must be met to

demonstrate ineffective assistance. Id. at 697. Judicial

scrutiny of this type of claim must be highly deferential and the

defendant must overcome a strong presumption that his counsel's

conduct falls within the wide range of reasonable professional

assistance. Id. at 689. Further, before a federal court can

grant habeas relief on an ineffective assistance of counsel claim

filed pursuant to § 2254, it must find that the state court

unreasonably applied the Strickland standard. Santellan v.

Cockrell, 271 F.3d 190, 198 (5th Cir. 2001) (citing Williams v.

Taylor, 529 U.S. 362, 413); see generally 28 U.S.C. § 2254(d)(1).

Here, both of Walker's ineffective assistance of counsel

claims fail to meet the first prong of the Strickland test. 

First, Walker argues that his lawyer should have proposed a

lesser included offense instruction rather than simply objecting

to the jury charge that lacked one. However, in objecting to the

jury charge, Walker's attorney properly preserved the issue of a

lesser included offense instruction for review on appeal, but the

appellate court found that Walker was not entitled to such an

instruction. Second, Walker alleges that he was prejudiced by

his attorney's failure to request a jury instruction on the issue

 

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 Walker contends that in strangling Burns, he was provoked by her

verbal abuse and her dog's snarling and growling at him. Thus, according to

Walker, the jury should have been given a "sudden passion" instruction with

the option of reducing his second-degree felony to a felony of the third

degree. However, under Texas law, "sudden passion" is defined as "passion

directly caused by and arising out of provocation by the individual killed or

another acting with the person killed which passion arises at the time of the

offense and is not solely the result of former provocation." Tex. Penal Code

Ann. § 19.02(a)(2). Further, in order for such passion to have an effect on

the punishment given a defendant, it must arise from an "adequate cause." 

"'Adequate cause' means cause that would commonly produce a degree of anger,

rage, resentment, or terror in a person of ordinary temper, sufficient to

render the mind incapable of cool reflection." Tex. Pen. Code Ann. §

19.02(a)(1). 

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of "sudden passion."1 Walker has failed to bring any evidence to

the court's attention which would indicate that he was entitled

to a "sudden passion" instruction, consequently, his attorney's

failure to request such an instruction did not result in any

prejudice to Walker. Neither of Walker's allegations demonstrate

that his attorney's conduct fell below an objective standard of

reasonableness. Thus, because Walker has failed to meet the

first prong of the Strickland test, no further inquiry is

necessary and the court concludes that his objections to the

magistrate judge's findings are without merit. 

Therefore, 

The court accepts the findings, conclusions and

recommendation of the magistrate judge and ORDERS that the

petition in this action be, and is hereby, denied.

The court further ORDERS that Walker's motion for discovery 

filed October 27, 2006, be, and is hereby, denied as moot. 

SIGNED November 29, 2006.

 /s/ John McBryde 

JOHN McBRYDE

 

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United States District Judge

 

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