Opinion
2:02-CV-0061.
January 7, 2005.
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner ROBERT EARL COVINGTON has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his conviction out of the 47TH Judicial District Court of Potter County, Texas, for the felony offense of aggravated robbery. For the reasons hereinafter expressed, the United States Magistrate Judge is of the opinion petitioner's application for federal habeas corpus relief should be DENIED.
I. PROCEDURAL HISTORY
On August 20, 1997, in Cause No. 38,029-A, styled The State of Texas vs. Robert Earl Covington, petitioner was indicted for the felony offense of aggravated robbery. Ex parte Covington, No. 50,449-01 at 32. Petitioner pleaded not guilty and a trial commenced on May 26, 1998. (Clerk's Record (hereinafter C.R.), Vol. 1 at 154). After the jury was unable to reach a unanimous decision, the trial court declared a mistrial on May 28, 1998. Id. at 155. On March 22, 1999, petitioner's second trial began and petitioner again pleaded not guilty. (Reporter's Record (hereinafter R.R.), Vol. 2 at 67). On March 23, 1999, the jury found petitioner guilty and sentenced him to 15 (fifteen) years imprisonment in the Texas Department of Criminal Justice, Institutional Division. (C.R., Vol. 1 at 134, 138; R.R., Vol. 3 at 129, 165-66).
Petitioner appealed his conviction to the Court of Appeals for the Seventh District of Texas who affirmed petitioner's conviction in an unpublished opinion on June 14, 2000. Covington v. State, No. 07-99-0129-CR (Tex.App. ___ Amarillo June 14, 2000, pet. ref'd), 2000 WL 768872; Ex parte Covington, No. 50,449-01 at 51-63. Petitioner filed a petition for discretionary review (PDR) which was refused by the Texas Court of Criminal Appeals on November 1, 2000. Covington v. State, PDR No. 1418-00; Ex parte Covington, No. 50,449-01 at 30.
On August 13, 2001, petitioner filed a state application for a writ of habeas corpus challenging the instant conviction. Ex parte Covington, No. 50,449-01 at 13. On October 24, 2001, the Texas Court of Criminal Appeals denied petitioner's application without written order. Id. at cover. On January 23, 2002, the instant application for federal habeas relief was filed with the Dallas federal court and was found to be deficient. Thereafter, on February 14, 2002, petitioner filed his corrected federal habeas application. On February 22, 2002, the instant case was transferred to this Court.
The original application was deficient because petitioner had failed to sign it. The original federal habeas application filed January 23, 2002 differs from the subsequent application filed February 14, 2002. Because the original application was deficient and because petitioner filed a corrected petition, such latter petition is the controlling application herein.
II. PETITIONER'S ALLEGATIONS
Petitioner appears to contend he is being held in violation of the Constitution and laws of the United States for the following reasons:
1. Petitioner's due process rights were violated because the trial court failed to sustain an objection to the introduction of evidence of an extraneous offense;
2. Petitioner was denied effective assistance of counsel because counsel:
a. failed to object to the introduction of the extraneous offense;
b. failed to object to the "fingerprint" evidence;
3. The court of appeals erred when it affirmed petitioner's conviction; and
4. The State habeas corpus proceedings were erroneous because the State failed to make proper findings of fact/conclusions of law by not holding any type of hearing either in person or by affidavits.
III. EXHAUSTION AND PROCEDURAL BAR
Respondent contends petitioner is procedurally barred from obtaining consideration and/or relief under his ground 2(b) because he failed to exhaust his state court remedies with respect to this issue specifically, petitioner failed to present this issue in his PDR or his state habeas writ application.Section 28 U.S.C. § 2254 states, as relevant to this proceeding:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) . . .
c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989). The doctrine serves "to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).
Under our federal system, the federal and state courts are equally bound to guard and protect rights secured by the Constitution. Because it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, federal courts apply the doctrine of comity, which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.Id. (brackets, internal quotation marks, and citations omitted). To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional claim presented to the state courts be supported by the same factual allegations and legal theories upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a petitioner's confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review.
Respondent avers petitioner's ground 2(b), an allegation that counsel failed to object at trial to the introduction of "fingerprint" evidence is unexhausted. Respondent argues that because petitioner failed to raise this claim in his PDR or his state habeas application, it is barred from federal review. Respondent is correct and that portion of petitioner's ground 2 is procedurally barred from federal habeas review. The remainder of petitioner's allegations, including his other claim of ineffectiveness of counsel, respondent agrees, have been exhausted.
Because petitioner has filed a federal petition raising both exhausted and unexhausted grounds, it is a mixed petition and is subject to summary dismissal in order that petitioner may present the unexhausted grounds to the Texas Court of Criminal Appeals. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Wilder v. Cockrell, 274 F.3d 255 n. 2 (5th Cir. 2001); Graham v. Johnson, 168 F.3d 762, 777-78 (5th Cir. 1999), cert. denied, 529 U.S. 1097, 120 S.Ct. 1830, 146 L.Ed.2d 774 (2000). If, however, petitioner were to return to the Texas Court of Criminal Appeals to present his unexhausted grounds, that court would dismiss petitioner's state habeas application without any review of the merits for abuse-of-the-writ. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994) (announcing the state's strict application of abuse-of-the-writ doctrine). The Fifth Circuit has ruled that the Texas courts' application of the abuse of writ doctrine is an adequate, independent state ground barring federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603, 132 L.Ed.2d 847 (1995). Federal review of a habeas claim is procedurally barred when the last state court to consider the claim denies relief based on a state procedural bar. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). Moreover, where a state court relies on a procedural bar to deny relief, a prisoner may not thereafter obtain federal habeas relief without showing cause for the default, and prejudice resulting therefrom. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). In order to show prejudice, petitioner must show the result of the proceeding would have been different. Smith v. Dixon, 14 F.3d 956, 974 (5th Cir. 1994), cert. denied 513 U.S. 841, 115 S.Ct. 129, 130 L.Ed.2d 72 (1995). Petitioner has not made such a showing and thus one of his claims of ineffective assistance of counsel, ground 2(b), is procedurally barred from federal corpus review. See Vega v. Johnson, 149 F.3d 354, 362 (5th Cir. 1998), cert. denied, 119 S.Ct. 899 (1999).
This ruling came after the Texas Court of Criminal Appeal's decision in Ex Parte Barber, 879 S.W.2d 889, 892 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). Prior to the decision in Barber, the Texas abuse doctrine was not regularly and strictly applied. Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.), cert. denied, 515 U.S. 1123, 115 S.Ct. 2278, 132 L.Ed.2d 282 (1995), cited in Fearance, 56 F.3d at 642.
It is acknowledged that the state court has not dismissed a habeas petition presented by petitioner on the unexhausted ground presented herein. However, based upon the holdings of Ex parte Barber and Fearance, this Court assumes such would occur. The only other alternative would be to dismiss the instant mixed petition because it presents both exhausted and unexhausted claims but to do so would be more detrimental to petitioner in that no ruling on his exhausted grounds would be reached.
Therefore, it is the opinion of the Magistrate Judge that while petitioner has not exhausted, in state court, one of the issues presented herein, this cause should not be dismissed for failure to exhaust, but instead, should be decided on the merits as to the exhausted claims. The unexhausted ineffective assistance of counsel claim, ground 2(b), the undersigned finds to be procedurally barred.
IV. STANDARD OF REVIEW
This case was filed subsequent to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and so the standards of review set forth in the AEDPA apply to this case. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). Consequently, petitioner may not obtain relief in this Court with respect to any claim adjudicated on the merits in the 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 the State court proceeding.28 U.S.C. § 2254(d). Further, all factual determinations made by a state court shall be presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Petitioner filed a PDR which was refused by the Texas Court of Criminal Appeals on November 1, 2000. Covington v. State, PDR No. 1418-00. See Ex parte Covington, No. 50,449-01 at 30. Petitioner has also filed one (1) state habeas application in the Texas Court of Criminals Appeals relating to Cause No. 38,029-A. The Court of Criminal appeals denied Ex parte Covington, App. No. 50,449-01 on October 24, 2001, without written order. The rulings of the Texas Court of Criminal Appeals on the grounds presented constitute an adjudication of petitioner's claims on the merits. Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999).
V. MERITS OF PETITIONER'S EXHAUSTED ALLEGATIONS
Federal habeas corpus will not lie unless an error was so gross or a trial so fundamentally unfair that the petitioner's constitutional rights were violated. In determining whether an error was so extreme or a trial so fundamentally unfair, this Court must review the putative error at issue, looking at the totality of the circumstances surrounding the error for a violation of the petitioner's constitutional rights. Based upon a review of the state court records the pleadings of record with this Court, it is the opinion of the Magistrate Judge that petitioner has failed to show he is being unlawfully detained in violation of the Constitution and laws of the United States.
A. Extraneous Offense Evidence
Petitioner has alleged the trial court erred when it did not sustain petitioner's objection to the introduction of evidence by the State of the offense of credit card abuse. Petitioner has articulated his claim as, "The day of trial, petitioner received verbal notice of the state evidence. To (sic) objected to the admisso (sic) of the extraneous offense evidence that the state intened (sic) to preset (sic) due to lack of notice the court abused it (sic) discretion in not sustaining petitioner (sic) objection." (Federal Habeas Application at 7). A review of the record shows that trial counsel objected, prior to the start of trial, to the introduction of the extraneous charge of credit card abuse. Counsel objected to the evidence due to lack of notice required by Article 37.07(g) of the Texas Code of Criminal Procedure. R.R. Vol. 2 at 16. The court reserved it's ruling on such objection until the evidence was to be introduced. Id. Counsel then referred the trial court to his motion in limine and requested such be granted as to the issue of extraneous offense evidence. Id. at 17. The trial court denied such request. Id.
As stated supra, petitioner's federal habeas application filed February 14, 2002 is considered the live pleading in this case. Petitioner has not explicitly stated in such application that the extraneous offense at issue was for credit card abuse. However, such was the extraneous offense complained of in his original habeas application filed January 23, 2002, and in his state habeas petition. Further, it was the only bad act which had not been adjudicated that the State told the trial court it planned to use. See R.R., Vol. 2 at 16.
During trial, the prosecution questioned the victim Father Francis Crowe who testified one of the items taken from him during the robbery was a Chevron credit card in the name of the Dominican Fathers. R.R., Vol. 2 at 113-114. Later, State's witness Robert William Hertel, Sr., testified that on July 19, 1997 he was working as a cashier at a Chevron station, and that petitioner came in and purchased gas with a credit card issued to "Father's Dominion." R.R. Vol. 3 at 13-14. Mr. Hertel also testified that petitioner attempted to purchase gas with the same credit card later that day, but because he could produce no identification, Mr. Hertel turned him down. Id. at 15. The prosecution then moved to introduce State's Exhibit #8, the credit card charge, and such was admitted with no objection from defense counsel. Id. at 16-18.
The Seventh Court of Appeals addressed this issue and stated,
. . . . Rather, it [the State] contends, without citation of relevant authority, that we should look to the notice it provided in appellant's first trial, a year before the start of the trial now on appeal.
We have not found any authority directly discussing the effect of a mistrial on pretrial rulings. There are some cases that mention the issue and suggest that pretrial rulings made before a mistrial continue in effect. For example, in Como v. State, 557 S.W.2d 93 (Tex.Crim.App. 1977), after two mistrials, the defendant "renewed" his pretrial motions and called the court's attention to one motion in particular. The trial court commented that it had ruled on the motion before and that the same motion applied. Id. at 94. Some cases have recognized that the effect of a mistrial is similar to the granting of a new trial. See Awadelkariem v. State, 974 S.W.2d 721, 724 (Tex.Crim.App. 1998). Rule 21.9 of the Rules of Appellate Procedure provides that the granting of a new trial restores the case to its position before the former trial "including at any party's option, arraignment or pretrial proceedings initiated by that party." Tex.R.App.P. 21.9. We have not found any cases discussing what is required for a party to exercise their "option" under this rule, nor have we found any such authority discussing the question under the present rule's progenitor, former Rule of Appellate Procedure 32.
However, even assuming, arguendo, that appellant exercised an option to "restore" the case to its position before the original pretrial motion by reasserting those motions before the second trial, there are two reasons why the issue must be overruled. First, appellant has failed to present any authority for his position that the trial court erred in failing to rule on the admissibility of the extraneous offense before trial. He argues that if he had received the Rule 404(b) notice before the day set for trial, he "may have anticipated the necessity" of a pretrial hearing and "may have discovered the purpose of the offer of such evidence before the day of trial." That argument carries little weight when the evidence and its purpose was clear to the defense from the first trial. The trial court did not err in refusing to rule on the admissibility of the evidence before trial.
Additionally, appellant failed to object to the extraneous offense when it was offered at trial. He offered no objection when Crowe [the victim] testified that one of the items taken in the robbery was his Chevron credit card in the name of the Dominican Fathers and that unauthorized charges appeared on the credit card bill. Appellant also failed to object when the State called Hertel, the gas station attendant who testified that appellant presented the card as payment on June 19, 1997. Without a timely, specific trial objection and a ruling thereon, nothing is presented for appellate review. Tex.R.App.P. 33.1(a). We overrule appellant's first issue.Covington v. State, No. 07-99-0129-CR (Tex.App.-Amarillo June 14, 2000, pet. ref'd), 2000 WL 768872 at 3.
The crux of petitioner's argument is the trial court erred when it failed to sustain petitioner's objection, before trial, that he did not receive timely notice of the State's intent to introduce extraneous offense evidence. As discussed supra, the Seventh Court of Appeals determined, based upon the facts of petitioner's case, that he was aware of the State's intent from the first trial and in any event, defense counsel failed to re-urge his objection when the evidence was presented at trial. Since this ground relates either to a state evidentiary ruling or to a violation of state law, such is not cognizable in federal habeas corpus. West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847, 137 L.Ed.2d 1050 (1997). Further, petitioner has failed to show prejudice. Petitioner's first claim should be denied.
B. Effectiveness of Counsel
Petitioner's remaining claim that he received ineffective assistance of counsel relates to the allegation that his attorney failed to object to the introduction of extraneous offense evidence. Construing petitioner's allegation in a liberal light, the Court presumes petitioner to refer to counsel's failure to object at trial, both during the testimony of the victim, Father Francis Crowe, and during the testimony of the Chevron gas station attendant, Robert Hertel.
The proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland standard, a petitioner must show defense counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A petitioner must also show counsel's deficient performance prejudiced the defense. To establish this prong, petitioner must show counsel's errors were so serious as to deprive petitioner of a fair trial. Specifically, petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different or that the errors were so serious as to deprive the petitioner of a fair trial with a reliable result." Id. at 694.
In order to amount to ineffective assistance of counsel, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Id. at 689. A reviewing court's scrutiny of trial counsel's performance is highly deferential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.
The burden of proof in a habeas corpus proceeding attacking the effectiveness of trial counsel is upon the petitioner, who must demonstrate that ineffectiveness by a preponderance of the evidence. Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2977 (1993).
Assuming arguendo petitioner has made a showing of deficient performance, his claim must still fail because he has not shown prejudice. Specifically, petitioner has not demonstrated that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different or that the errors were so serious as to deprive the petitioner of a fair trial with a reliable result." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Witness, Sammy Fulton, testified he saw petitioner near the crime scene on the night in question, and that petitioner had received money from the victim, Father Crowe, in the past. R.R. Vol. 2 at 127-140. As discussed supra, Robert Hertel, the Chevron gas station attendant, testified he saw petitioner the day after the crime, and petitioner was in possession of a Chevron credit card similar to that taken from Father Crowe. R.R. Vol. 3 at 13-14. Mr. Dile George testified he too was employed at the Chevron station during the time at issue and that he saw petitioner at the station the day after the robbery of Father Crowe. R.R., Vol. 3 at 6. Amarillo Police officer Anthony Merryman testified that he worked on the instant robbery case. During his investigation, Merryman testified, a man named William Burnum found some of Father Crowe's papers and his driver's license in a remote location and turned them over to the police. R.R. Vol. 3 at 52-53. Mr. Burnum took police to the location where he had discovered the items and a wallet was recovered at that scene. Id. at 54-55. Finally, Sergeant Mike Crandell of the Amarillo Police Department testified that he processed the above referenced papers and found one latent fingerprint belonging to petitioner. Id. at 68-70. Thus, even though trial counsel failed to object to the introduction of extraneous offense evidence, and assuming such was an error, petitioner has failed to show how such action was prejudicial to his case in light of the other evidence. Petitioner's claim is without merit.
Even if the trial court had ruled against the introduction of the extraneous offense, credit card abuse, Mr. Hertel would still have been able to testify he saw petitioner in possession of the credit card for identification purposes.
C. Court of Appeals Error
Petitioner claims in his habeas application filed February 14, 2002, that the Seventh Court of Appeals committed error when it upheld his conviction. Specifically, petitioner has stated, "The Court of Appeal (sic) decision on issue to (affirm) petitioner (sic) conviction conflicts with another court of appeals decision to warrent (sic) reversal on the same issues. And (sic) the Court of Appeals has decided an important question of state or federal law." (Petitioner's Habeas Application at 8). Petitioner has not elaborated for this Court, specifically how the Seventh Court of Appeals decision differed from an alleged case from another court of appeals, he has not cited such other conflicting case nor shown that it was in any way binding precedent which the Seventh Court of Appeals failed to follow. A review of petitioner's initial habeas pleading, filed January 23, 2002 reveals that petitioner is again attempting to complain about the trial court's ruling on the notice of intent to use an extraneous offense issue, and the court of appeals alleged error in failing to reverse and remand. In its opinion, the Seventh Court of Appeals discussed the lack of caselaw related to Texas Code of Criminal Procedure Article 37.07(g) in the context of mistrials and pre-trial rulings. See Covington v. State, No. 07-99-0129-CR (Tex.App.-Amarillo June 14, 2000, pet. ref'd), 2000 WL 768872 at 3. The court referenced a couple of cases which differed in their views on the effect of a mistrial on pre-trial rulings but ultimately determined first, that petitioner was on notice of the State's intent to use extraneous offense information due to his first trial and second, that trial counsel did not object at trial to the use of such information and thus nothing was preserved for appellate review. Petitioner has not met his burden on this issue, he has failed to show that the decision of the Seventh Court of Appeals was anything but proper. Assuming, solely for purposes of argument, that an erroneous state court appellate decision is cognizable in a federal habeas case, petitioner has failed to show entitlement to relief. This claim must fail.
Such petitioner as discussed supra is not the live pleading in this case but is referred to for clarification purposes in an attempt to decipher petitioner's argument.
D. State Habeas Proceedings
By his final allegation, petitioner claims that the state habeas proceeding violated his due process rights because the Texas Court of Criminal Appeals failed to hold a hearing and receive oral argument or request affidavits, and failed to make findings of fact and conclusions of law. Petitioner's claim alleges infirmities in the state habeas corpus proceedings and is not cognizable upon federal habeas review. See Manning v. Blackburn, 786 F.2d 710, 711 (5th Cir. 1986). Petitioner's claim is without merit and must be denied.
VI. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner ROBERT EARL COVINGTON be DENIED.
VII. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner and to counsel of record for respondent by the most efficient means available.
IT IS SO RECOMMENDED.