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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRIAN KEITH FAUTNER §

§

Petitioner, §

§

VS. § 

§ NO. 3-06-CV-0060-M

NATHANIEL QUARTERMAN, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Brian Keith Fautner, by and through his court-appointed attorney, has filed an

amended 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 by a jury of delivery of more than one gram but less than four grams

of cocaine. Punishment, enhanced by two prior felony convictions, was assessed at 30 years

confinement. His conviction and sentence were affirmed on direct appeal. Fautner v. State, No. 05-

01-01297-CR, 2003 WL 21783349 (Tex. App. --Dallas, Aug. 4, 2003, no pet.). Petitioner also filed

an application for state post-conviction relief. The application was denied without written order.

Ex parte Fautner, No. 45,162-02 (Tex. Crim. App. May 11, 2005). Petitioner then filed this action

in federal district court.

 

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 On July 6, 2004, petitioner filed an application for state post-conviction relief challenging his conviction

on the grounds that: (1) the trial court lacked jurisdiction to convict him of a lesser included offense; (2) the evidence

was insufficient to support the enhancement paragraphs of the indictment; and (3) his representation at trial was

constitutionally deficient in numerous respects. For some reason not apparent from the record, petitioner's state writ was

forwarded to the Texas Court of Criminal Appeals on August 11, 2004 without findings from the trial court. The appeals

court denied the writ without written order on May 11, 2005. Ex parte Fautner, No. 45,164-02. Unaware of this

disposition, the trial judge appointed an attorney to assist petitioner in developing his ineffective assistance of counsel

claim. On October 21, 2005, after the state obtained an affidavit from trial counsel, the judge entered findings of fact

and conclusions of law, approved the record, and forwarded the case to the Texas Court of Criminal Appeals. 

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After conducting a preliminary review of the habeas petition, the magistrate judge sua sponte

questioned whether this case was barred by the AEDPA statute of limitations. See 28 U.S.C. §

2244(d)(1) ("A 1-year period of limitations shall apply to an application for writ of habeas corpus

by a person in custody pursuant to the judgment of a State court."). Petitioner, who at that time was

appearing pro se, addressed the limitations issue in a written response filed on February 2, 2006.

Unable to resolve this issue on the pleadings, the court scheduled an evidentiary hearing, appointed

counsel to represent petitioner, and invited the parties to submit further briefing. See Order, 2/7/06.

While preparing for this hearing, counsel uncovered evidence which suggested that one of the claims

raised by petitioner in his state writ was still pending before the Texas Court of Criminal Appeals.1

The magistrate judge agreed and recommended that petitioner's federal writ be dismissed without

prejudice for failure to exhaust state remedies. Fautner v. Dretke, No. 3-06-CV-0060-M, rec. at 4

(N.D. Tex. Apr. 6, 2006). Respondent timely objected to that recommendation, arguing that

petitioner's entire state writ was properly forwarded to the Texas Court of Criminal Appeals by the

Dallas County district clerk where it was denied without written order. In addition, respondent

renewed his argument that petitioner's federal writ was barred by the AEDPA statute of limitations.

In light of those objections, the district judge remanded the case to the magistrate judge for further

consideration.

 

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2 In his answer, respondent once again argues that this case is barred by limitations. The court need not decide

this procedural issue as petitioner is not entitled to federal habeas relief in any event. See White v. Quarterman, No. 3-

06-CV-0705-P, 2006 WL 2914608 at *2 n.1 (N.D. Tex. Oct. 11, 2006) (Kaplan, J.) (declining to address affirmative

defense of limitations where petitioner was not entitled to relief on the merits); Wheat v. Dretke, No. 3-05-CV-1315-H,

2005 WL 1667832 at *1 n.1 (N.D. Tex. Jul. 15, 2005) (Kaplan, J.), rec. adopted, 2005 WL 1837154 (N.D. Tex. Aug.

3, 2005) (same).

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On remand, the magistrate judge allowed petitioner to rebrief his grounds for relief with the

assistance of counsel and directed respondent to answer those claims on the merits. Petitioner filed

his amended application for writ of habeas corpus on August 11, 2006. Respondent filed an answer

on October 5, 2006. The issues have been fully briefed by the parties and this case is ripe for

determination.

II.

In his sole ground for relief, petitioner criticizes his attorney for failing to object to the

prosecutor's closing argument that impermissibly raised the burden of proof for establishing an

entrapment defense.2

A.

The Sixth Amendment to the United States Constitution guarantees the right to effective

assistance of counsel in a criminal case. That right is denied when the performance of counsel falls

below an objective standard of reasonable professional conduct and thereby prejudices the defense.

Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003), citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Prejudice results

when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 104 S.Ct. at 2068. See also Lockhart v.

Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must

 

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show that trial result was fundamentally unreliable or proceeding fundamentally unfair due to

deficient performance of counsel). 

Where, as here, a state court has already rejected an ineffective assistance of counsel claim,

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

 

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

(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.

At trial, the state proved that petitioner sold 3.4 grams of crack cocaine to an undercover

police officer for $300.00. Petitioner did not dispute that this transaction occurred. Instead, his sole

defense was that he was coerced by another police officer who threatened to send him to jail unless

he arranged the drug buy. (See SF III at 118). Thus, entrapment was a key issue in the case. 

Under Texas law:

It is a defense to prosecution that the actor engaged in the conduct

charged because he was induced to do so by a law enforcement agent

using persuasion or other means likely to cause persons to commit the

offense. Conduct merely affording a person an opportunity to

commit an offense does not constitute entrapment.

Tex. Penal Code Ann. § 8.06(a) (Vernon 2003). An entrapment defense has both a subjective and

an objective component. A defendant seeking to avoid criminal liability based on entrapment must

prove "that he was in fact induced, and that the conduct that induced him was such as to induce an

ordinarily lawabiding person of average resistence." England v. State, 887 S.W.2d 902, 913 (Tex.

Crim. App. 1994). In urging the jury to reject this defense, the prosecutor argued:

First of all, you have to believe that there was persuasion by the

police officer. In other words, something outside of your normal

dope deal where the officer is merely giving the defendant an

opportunity. Instead of that, they are doing something illegal. They

are persuading or doing illegal persuading. That's the first thing you

have to believe.

 

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The second thing you have to believe is that this persuasion was such

as to cause a person of average resistence to commit the offense. In

other words, the average person like you and I would be persuaded

to commit this offense. Now, come on, that's kind of the way you

have got to look at it really. It is not whether or not the defendant

given--given his tendencies to use and sell dope would be persuaded.

It is whether or not the average person would be persuaded. That test

fails in this case. There is no persuasion, nor would an average

person be persuaded. It was merely affording an opportunity, that

simply a normal dope deal. And the officers were doing their job.

(SF-III at 174-75) (emphasis added). Petitioner contends that trial counsel should have objected to

this argument because, by using herself as the standard, the prosecutor transformed the "ordinarily

law-abiding person" into an "exceptionally law-abiding person," thus raising the burden of proof for

establishing entrapment to a level almost impossible to achieve. (See Am. Hab. Pet. at 13-14). 

In rejecting this claim on collateral review, the state court implicitly found that counsel was

not ineffective for failing to object to the prosecutor's jury argument. This finding is conclusive in

a subsequent federal habeas proceeding unless rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1); see also Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001), cert. denied, 123

S.Ct. 106 (2002) (presumption of correctness applies to both explicit and implicit findings necessary

to state court's conclusions of mixed law and fact). Not only has petitioner failed to rebut the state

court findings, but he has not convinced this court that the jury argument was, in fact, improper.

When considered as a whole, the prosecutor's argument correctly summarized the objective prong

of the entrapment test. Her isolated remark that there is no entrapment unless "the average person

like you and I would be persuaded to commit this offense" did not misstate the law or impose a

heightened burden on the defense. Throughout the rest of her argument, the prosecutor made

repeated references to the hypothetical "average person" without comparison to herself or anyone

 

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 None of the cases cited by petitioner compel a different conclusion. In Ramos v. State, 632 S.W.2d 688 (Tex.

App.--Amarillo 1982, no pet.), the court discussed examples of police misconduct that may satisfy the objective prong

of the entrapment test, but ultimately determined that the defendant failed to prove that he was induced or otherwise

persuaded by law enforcement officers to engage in criminal activity. Although the court found entrapment in Torres

v. State, 980 S.W.2d 873 (Tex. App.--San Antonio 1998, no pet.), the evidence in that case established that the

undercover officer cultivated a friendship with the defendant, used that friendship to persuade the defendant to help him

obtain drugs, and assured the defendant that he wouldn't be doing anything wrong. No such evidence exists here. 

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else. Nothing suggests that the jury was confused by anything the prosecutor said or interpreted the

"average person" to mean an "exceptionally law-abiding person." Consequently, this ground for

relief should be overruled.3

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: October 25, 2006.

 

 

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