\IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GREGORY CHARLES REED, §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-0517-Y

§

DOUGLAS DRETKE, DIRECTOR, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United

States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254. 

B. PARTIES

Petitioner Gregory Charles Reed, TDCJ-ID #1182088, is in custody of the Texas Department

of Criminal Justice, Correctional Institutions Division, in Beeville, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institution Division.

C. FACTUAL AND PROCEDURAL HISTORY

In March 2002, Reed was charged by indictment with aggravated sexual assault with a

 

 Case 4:05-cv-00517-Y Document 13 Filed 03/01/06 Page 1 of 7 PageID 98
1

Typically, a pro se habeas petition is deemed filed when the petition is delivered to prison

authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). Reed’s petition does

not reflect the date he delivered the petition to prison authorities for mailing. Thus, this court

considers the petition filed on August 13, 2005, the postmark date shown on the envelope used to

mail the petition.

2

deadly weapon, indecency with a child, and aggravated sexual assault with serious bodily injury in

Case No. 0829013D in the 297th District Court of Tarrant County, Texas. (Clerk’s R. at 3.) Reed

waived his right to a jury trial, and, on April 16, 2003, after a bench trial, the trial court found him

guilty of the offenses and assessed a life sentence for the first offense and two concurrent twentyyear sentences for the latter two offenses. (Id. at 88.) Reed appealed his convictions, but the Second

District Court of Appeals of Texas affirmed the trial court’s judgment in an unpublished opinion on

June 17, 2004. Reed v. Texas, No. 2-03-157-CR (Tex. App.–Fort Worth June 17, 2004) (not

designated for publication). Reed did not file a petition for discretionary review in the Texas Court

of Criminal Appeals. (Petition at 3.) Reed filed two state applications for writ of habeas corpus,

raising the issues presented, which the Texas Court of Criminal Appeals denied without written

order on March 30, 2005. Ex parte Reed, Nos. 61,144-01 & 61,144-02, at cover. He filed this

federal petition on August 13, 2005. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998)

(holding pro se habeas petition filed when papers delivered to prison authorities for mailing).1

Dretke has filed an answer with supporting documentation.

D. ISSUES 

Reed’s claims, most of which are vague and indecipherable, are construed as follows:

(1) His convictions were obtained by the failure of the prosecution to

disclose favorable evidence to the defense; 

(2) His convictions were obtained by the judge’s failure to intervene when

the prosecution used leading questions when examining witnesses and the victim;

 

 Case 4:05-cv-00517-Y Document 13 Filed 03/01/06 Page 2 of 7 PageID 99
3

(3) His convictions were obtained by his physical presence in restraints

during trial;

(4) His convictions were obtained by an invalid and defective indictment;

(5) His convictions were obtained by a flawed transcript;

(6) His convictions were obtained in violation of his constitutional rights

because he was denied pretrial bail;

(7) His convictions were obtained by a false and defective appellate brief;

(8) His convictions were obtained by false misinterpretation because counts

one and two of the indictment were waived;

(9) His sentence is illegal;

(10) His convictions were obtained by a written letter that falsely destroyed

his character; 

(11) His convictions were obtained as a result of an involuntary and coerced

statement to police;

(12) His convictions were obtained by newly discovered claim of actual

innocence following DNA testing;

(13) His convictions were obtained as a result of ineffective assistance of

counsel;

(14) The evidence was insufficient to support his convictions in light of the

evidence that he acted in self-defense;

(15) He received ineffective assistance. (Petition at 7-8 & attachment).

E. RULE 5 STATEMENT

Dretke acknowledges that Reed’s claims, raised in his state habeas applications, are

exhausted as required by 28 U.S.C. § 2254(b)(1)(A).

F. DISCUSSION 

1. Legal Standard for Granting Habeas Corpus Relief

 

 Case 4:05-cv-00517-Y Document 13 Filed 03/01/06 Page 3 of 7 PageID 100
4

Under 28 U.S.C. § 2254(d), a 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 he shows that the prior adjudication: (1) resulted in

a decision that was contrary to, or involved an unreasonable application of, clearly established

federal law, 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. 28 U.S.C. § 2254(d). A decision is

contrary to clearly established federal law if the state court arrives at a conclusion opposite to that

reached by the Supreme Court of the United States on a question of law or if the state court decides

a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams

v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).

A state court decision will be an unreasonable application of clearly established federal law if it

correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams,

529 U.S. at 407-08.

Further, federal courts give great deference to a state court’s factual findings. Hill, 210 F.3d

at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court

shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies

to both explicit findings of fact and those findings of fact implicit in the state court’s mixed law and

fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n.11 (5th Cir. 2001). The petitioner has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. §

2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas

corpus application without written opinion, it is an adjudication on the merits, which is entitled to

this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002); Ex parte Torres, 943 S.W.2d

 

 Case 4:05-cv-00517-Y Document 13 Filed 03/01/06 Page 4 of 7 PageID 101
2

The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris

v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).

5

469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court may assume that the state

court applied correct standards of federal law to the facts, unless there is evidence that an incorrect

standard was applied, and imply fact findings consistent with the state court’s disposition.

Townsend v. Sain, 372 U.S. 293, 314 (1963);2 Schartzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.

2003), cert. denied, 540 U.S. 1154 (2004); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir.

2002); Valdez, 274 F.3d at 948 n.11; Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997).

2. Application

The Texas Court of Criminal Appeals denied Reed’s state habeas applications without

written order or express findings of fact. Assuming the state court applied the correct standards of

federal law to the facts and made factual findings consistent with the state court’s disposition, this

court will defer to the state court’s adjudication of Reed’s claims unless it appears the determination

of the issues was: (1) contrary to or involved an unreasonable application of federal law, or (2)

resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence in the state court proceedings. Reed has not demonstrated, by citation to relevant case law

or presentation of evidence, that the state court’s decision is contrary to federal law or unreasonable

in light of the evidence before the state court. See 28 U.S.C. § 2254(d). In fact, Reed simply

restates his claims in his federal petition and makes no effort to rebut the presumptive correctness

of the state court’s decision. Wholly conclusory allegations, without more, do not raise

constitutional issues in a habeas proceeding. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir.

1983). Applying these principles and having independently reviewed each of Reed’s claims in

 

 Case 4:05-cv-00517-Y Document 13 Filed 03/01/06 Page 5 of 7 PageID 102
6

conjunction with the state court records, it does not appear that the state court applied federal law

in an objectively unreasonable manner or that the state court’s decision was based on an

unreasonable determination of the facts in the light of the evidence presented in the state court

proceedings. Assuming the trial court believed the testimony of the state’s witnesses, including the

victim’s, and disbelieved Reed’s version of the events, the evidence of his guilt was overwhelming,

and he has not shown a reasonable probability that he would have been acquitted absent the alleged

actions of the trial court, the prosecution, or his counsel. Reed is not entitled to federal habeas relief.

II. RECOMMENDATION

Reed’s petition for writ of habeas corpus should be denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until March 22, 2006. The United States District Judge need only make a de

novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

 

 Case 4:05-cv-00517-Y Document 13 Filed 03/01/06 Page 6 of 7 PageID 103
7

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 22, 2006, to

serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED March 1, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

 Case 4:05-cv-00517-Y Document 13 Filed 03/01/06 Page 7 of 7 PageID 104