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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BOBBY WAYNE LINSCOME, 1127000, )

Petitioner, )

)

v. ) No. 3:06-CV-222-L

) ECF

NATHANIEL QUARTERMAN, Director )

Texas Department of Criminal Justice, )

Correctional Institutions Division )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Background

On September 11, 2002, Petitioner was convicted in two cases of theft of property less

than $1500, enhanced by two prior felonies. State of Texas v. Donald Linscome, Nos. F0250229-UM and F-0250841-VM (194th Jud. Dist. Ct., Dallas County, Tex., Sept. 11, 2002). 

Petitioner was sentenced to fifteen years confinement in each case, to run concurrently. On

October 29, 2003, the Fifth District Court of Appeals affirmed the convictions. Linscome v.

State, Nos. 05-02-01505-CR and 05-02-1506-CR (Tex. App.– Dallas, Oct. 29, 2003, pet ref’d). 

On March 10, 2004, the Court of Criminal Appeals refused Petitioner’s petition for discretionary

review. Linscome v. State, PDR No. 2031-01. 

On June 27, 2005, Petitioner filed two state petitions for writ of habeas corpus

 

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challenging both of his convictions. Ex parte Linscome, Application Nos. 63,512-01 and -02. 

On December 14, 2005, the Court of Criminal Appeals denied the petitions without written

order. Id. at cover.

On February 3, 2006, Petitioner filed this federal petition. Petitioner argues: (1) he

received ineffective assistance of counsel; (2) his sentence was illegal; and (3) he is actually

innocent. 

II. Discussion

1. Factual Background

The following statement of facts is taken from the opinion of the Fifth Court of Appeals:

The trial in these cases was short and consisted primarily of the testimony of

Rhonda Gold and Ron Davis, employees of the two stores from which [Linscome] was

accused of shoplifting. Gold testified she was working as a cashier at a local Diamond

Shamrock when [Linscome] entered the store and drew her attention to a bag of shoes he

was carrying. According to Gold, [Linscome] then began walking through the store,

taking several items off the shelves and placing them in his clothing. When it appeared

[Linscome] was about to leave, Gold rushed to the front door, locked it, and dialed 911. 

When [Linscome] saw a police officer approaching, he began taking items out of his

pants and placing them on the counter. The officer later removed the remaining items. 

Among those items were eight medicine packages, a beer bottle, coffee, and bottles of hot

sauce. Gold testified [Linscome] did not have permission to take those items and she

believed he took them intending to deprive her of them.

Davis, a manager at a local Racetrac, testified he was helping a customer when

[Linscome] entered, placed a bag down on the counter, and walked towards the back of

the store. From a domed mirror in that section, Davis could see [Linscome] “fumbling

with his clothes.” A few moments later, [Linscome] approached Davis and paid for a

soda. When [Linscome] began to leave, Davis stopped him and told him to put the items

he had hidden in his clothing back or he would call the police. [Linscome] responded that

he had not taken anything and Davis warned him again. When [Linscome] denied taking

anything a second time, Davis locked the doors and dialed 911. At that point,

[Linscome] began returning to the shelves the items he had taken, including four cans of

food, one bar of soap, and two bottles of beer. By the time police arrived, [Linscome]

had returned all the items. Like Gold, Davis testified [Linscome] did not have his

permission to take any of the items and he believed [Linscome] was taking them with the

intent of depriving him of them.

 

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[Linscome] did not testify and did not call any witnesses.

Linscome v. State, Nos. 05-02-01505-CR and 05-02-01506-CR at 1-2. 

2. Standard of Review

The pertinent terms AEDPA state:

(d) 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 – 

(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 a State court proceeding.

28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the writ

of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United

States Supreme Court on a question of law or if the state court decides a case differently from the

United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal court may

grant a writ of habeas corpus if the state court identifies the correct governing legal principle

from the United States Supreme Court’s decisions, but unreasonably applies that principle to the

facts of the prisoner’s case. Id.

This amendment applies to all federal habeas corpus petitions which are adjudicated on

the merits in state court after April 24, 1996. See Lindh, 521 U.S. at 336. The petition in this

case is subject to review under the AEDPA.

 

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3. Ineffective Assistance of Counsel

To sustain a claim of ineffective assistance of counsel, Petitioner must show that: (1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense so

gravely as to deprive Petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). In Strickland, the Court stated that “[j]udicial scrutiny of counsel’s performance must be

highly deferential” and “every effort [must] be made to eliminate the distorting effects of

hindsight.” Strickland, 466 U.S. at 689. Courts, therefore, must “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such

prejudice, Petitioner must show “a reasonable probability that the result of the proceedings

would have been different but for counsel’s unprofessional errors.” Crane v. Johnson, 178 F.3d

309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he mere possibility of a

different outcome is not sufficient to prevail on the prejudice prong.” Id. “Rather, the defendant

must demonstrate that the prejudice rendered sentencing ‘fundamentally unfair or unreliable.’”

Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

In this case, Petitioner argues he received ineffective assistance of appellate counsel

because counsel failed to raise a double jeopardy argument. It appears Petitioner is arguing that

his two convictions for theft under $1500 violated the Double Jeopardy Clause.

The Double Jeopardy Clause protects against multiple prosecutions and punishments for

the same offense. See Monge v. California, 524 U.S. 721, 727-28 (1998). The Double Jeopardy

Clause protects against: “(1) prosecution of the same offense after acquittal; (2) prosecution of

the same offense after conviction; and (3) multiple punishments for the same offense.” United

 

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On state habeas review, Petitioner raised the claim that his conviction was illegal because his

state jail felonies could not be enhanced. In this case, he argues his convictions were illegal because he

was indicted in the 291st and 292nd District Courts, but he was tried in the 194th District Court.

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States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992).

Petitioner’s claims do not implicate any of the interests protected by the Double Jeopardy

Clause. The offenses in cause numbers F-0250229-UM and F-025081-VM were committed on

different dates, the indictments allege different complaining witnesses and both offenses involve

different property. Petitioner has therefore not shown a violation of the Double Jeopardy Clause,

and his counsel was not deficient for failing to raise this claim. See United States v. Gibson, 55

F.3d 173, 179 (5th Cir. 1995) (“stating counsel is not required to file frivolous motions”). 

Petitioner’s claim should be denied. 

4. Procedural Bar

Respondent argues that Petitioner’s claims that his sentence was illegal and that he is

actually innocent are procedurally barred. If a state court has declined to address a prisoner’s

federal claims because the prisoner failed to meet a state procedural requirement, such as filing a

petition for discretionary review, the procedural bar applies. See Coleman v. Thompson, 501

U.S. 722, 729-31 (1991). The general rule that a state court must explicitly apply a procedural

bar to preclude federal review does not apply when a petitioner has not presented his claims to

the highest court of the state and the state court to which he would be required to present his

claims would now find the claim procedurally barred. Id.

The records reflects that Petitioner did not raise these claims in either his petition for

discretionary review or in his state habeas petition.1

 Accordingly, the Texas Court of Criminal

Appeals has not reviewed the claims. The claims cannot be reviewed by a state court because it

 

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is too late to file a petition for discretionary review. If this Court were to require Petitioner to

return to state court to exhaust these claims, they would be subject to dismissal. Federal courts

ordinarily will not review questions of federal law when such a state procedural bar exists.

To overcome the procedural bar established by the abuse-of-the-writ doctrine, a

petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result

of the alleged violation of federal law; or (2) that failure to consider the claims will result in a

“fundamental miscarriage of justice.” Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997) (citing

Coleman, 501 U.S. at 750). Petitioner has not shown sufficient cause for his failure to present

these claims to the Texas Court of Criminal Appeals.

Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. 

This exception is “confined to cases of actual innocence, ‘where the petitioner shows, as a

factual matter, that he did not commit the crime of conviction.’” Fairman v. Anderson, 188 F.3d

635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). To establish

the required probability that he was actually innocent, a petitioner must support his allegations

with new, reliable evidence that was not presented at trial and must show it was more likely than

not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing

Schlup, 513 U.S. at 327). 

Petitioner states he has new evidence showing that the district attorney committed perjury

in her brief on state habeas review. Petitioner attaches a portion of her brief where she states:

“Applicant pled guilty to a State Jail felony, which was enhanced by two prior felony

convictions into a second-degree felony.” (Ex parte Linscome, No. 63,512 at 25). Petitioner, in

fact did not plead guilty, but was found guilty by a jury. The first page of the state’s brief

 

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correctly states that Petitioner was convicted by a jury. (Id. at 24). Further, the trial court’s

Findings of Fact and Conclusions of Law correctly states that Petitioner was convicted by a jury. 

(Id. at 35). Petitioner has failed to show that this error in the state’s brief would make it more

likely than not that no reasonable juror would have convicted him in light of this evidence.

Petitioner has not overcome the state procedural bar. Accordingly, the procedural default

doctrine bars federal habeas relief on Petitioner’s claims that his sentence was illegal and he is

actually innocent.

5. Summary

Petitioner is lawfully restrained because he has failed to prove that he has been denied a

constitutionally protected interest. Accordingly, the state courts’ decision to deny relief is not

contrary to or does not involve an unreasonable application of clearly established federal law and

is not based on an unreasonable determination of the facts in light of the evidence presented in

the state court proceedings.

RECOMMENDATION

This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 be DENIED.

Signed this 21st day of March, 2007.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140 (1985). Additionally, the

failure to file written objections to proposed findings and recommendations within ten (10) days

after being served with a copy shall bar the aggrieved party from appealing the factual findings

and legal conclusions of the Magistrate Judge that are accepted 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) (en banc).

 

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