Opinion
7:01-CV-087-R
October 15, 2003
MEMORANDUM OPINION AND ORDER
Came on to be considered the papers and pleadings filed in this action and the Court finds and orders as follows:
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by an inmate confined in the Ramsey n Unit of the Texas Department of Criminal Justice in Rosharon, Texas. On March 13, 1998, upon a plea of not guilty, Cracker was tried by jury and convicted for the offense of indecency with a child. Petition ¶¶ 1-6; State v. Cracker, No. 07632 (90* Judicial District of Young County, Texas), Transcript of Papers Filed in the Trial Court at pp. 133-135 (hereinafter "TR p. ___"). His sentence was assessed at twenty-years confinement. Id. Petitioner filed a direct appeal and, on November 4, 1999, his conviction was affirmed. Petition ¶¶ 8 9; Crocker v. State, No. 2-98-246-CR (Tex.App. — Ft. Worth 1999, pet. ref d.). Cracker's petition for discretionary review was refused on March 15, 2000. Crocker v. State, P.D.R. No. 032-00. He filed one state habeas application attacking his conviction which, on April 25, 2001, was denied without written order. Ex parte Crocker, App. No. 47, 698-02 at Cover.
In support of the instant petition, Crocker presents the following grounds for relief:
1. He was denied effective assistance of counsel because his attorney:
A. failed to timely inform him of the prosecutor's plea bargain offer;
B. failed to seek a jury instruction on a lesser included offense;
C. inflamed the jury by disclosing his prior felony convictions, and;
2. There was insufficient evidence to support a conviction.Petition ¶¶ 12.A-D.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"), Pub.L. 104-132, 110 Stat. 1217, under which we now have a heightened standard of review in federal habeas corpus proceedings. Title I of the Act substantially changed the way federal courts handle such actions. The AEDPA applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Therefore, Title I of the Act applies to his petition.
The AEDPA provides in pertinent part:
(d) 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 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.A. § 2254(d) (West 2003).
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, 412-13, 120 S.Ct. 1495, 1523 (2000); Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, 531 U.S. 1002, 121 S.Ct. 508 (2000). Under § 2254(d)(2), the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court (1) unreasonably applies the correct legal rule to the facts of a particular case or (2) it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407, 120 S.Ct. at 1520. The standard for determining whether a state court's application was unreasonable is an objective one. This standard of review applies to all federal habeas corpus petitions which, like the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521. U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
Upon a finding of state court compliance with the "contrary to" clause of 28 U.S.C. § 2254(d)(1), federal courts give deference to the state court's findings unless such findings violate the "unreasonable application" clause of 28 U.S.C. § 2254(d)(2). Chambers, 218 F.3d at 363. The "unreasonable application" clause concerns only questions of fact. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001 (2001). The resolution of factual issues by the state court are afforded a presumption of correctness and will not be disturbed unless the habeas petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Sumner v. Mata 449 U.S. 539, 550, 101 S.Ct. 764, 771 (1981). Absent such evidence, the presumption of correctness is applied provided that the state court findings are evidenced in writing, issued after a hearing on (he merits and are fairly supported by the record. E.g., Burden v. Zant, 498 U.S. 433, 111 S.Ct. 862, 864 (1991); Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994), cert. denied, 513 U.S. 1137, 115 S.Ct. 959 (1995); May v. Colitis, 955 F.2d 299, 310 (5th Cir.), cert. denied, 504 U.S. 901, 112 S.Ct. 1925 (1992); 28 U.S.C. § 2254(d).
The facts of this case were recited by the Second Court of Appeals as follows: L.M., the complainant, and a friend were riding their bikes around a school yard on a Saturday morning when a man suddenly appeared from behind a building and put a hand over L.M.'s mouth. The man put his hand in L.M/s vaginal area and squeezed. L.M. urinated in him, left her bicycle at the school, and fled.Cracker v. State, No. 2-98-246-CRp.S (Tex.App. — Ft. Worth 1999, pet. ref d.).
Petitioner first claims that he was denied effective assistance of counsel at trial. The Sixth Amendment of the United States Constitution guarantees a criminal defendant "reasonably effective assistance" of counsel. Strickland v. Washington 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 687-91 694, 104 S.Ct. at 2064-66 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
It is not sufficient for a habeas petitioner to merely allege deficiencies on the part of counsel. He must affirmatively plead the resulting prejudice in his habeas petition. Hill v. Lockhart, 474U.S. 52, 59-61, 106 S.Ct 366, 371 (1985); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988). A court reviewing an ineffectiveness claim need not consider the two inquires under Strickland in any particular order since a failure to establish either requirement necessarily defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990), cert. denied, 498 U.S. 1033, 111 S.Ct 694 (1991).
"It is well settled that effective assistance is not equivalent to errorless counsel or counsel judged ineffective by hindsight, [citations omitted]. Rather, inquiry must be made into the totality of the circumstances surrounding counsel's performance to determine whether reasonably effective representation was provided." Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court reviewing an ineffectiveness claim must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional competence or that, under the circumstances, the challenged action might be considered sound trial strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Bridge v. Lynaugh, 838 F.2d at 773.
Crocker first claims that he was denied effective assistance of counsel because his attorney failed to inform him of the prosecutor's twelve-year plea bargain offer until trial started at which time the offer was no longer on the table. Petitioner's Memorandum p. 1. The failure of an attorney to inform his client of a plea offer may constitute ineffective assistance of counsel. Teague v. Scott, 60 F.3d 1167, 1170-71 (5th Cir. 1995). To demonstrate prejudice resulting from counsel's alleged ineffectiveness in the instant case, Petitioner must demonstrate that, had he known of the twelve-year plea offer, he would have accepted the offer and pleaded guilty rather than proceeding to trial.
Crocker has failed to satisfy the second prong of the Strickland test. He does not state that he would have accepted a twelve-year sentence in exchange for a guilty plea and he alleges no facts or circumstances which might support a conclusion that, but for the alleged deficiency of counsel, he would have agreed to a twelve-year sentence rather than going to trial. Review of the record reflects no facts or circumstances present in this case (hat would suggest Petitioner would have agreed to any such offer, especially in light of the fact that he maintained his innocence throughout the trial. See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994), cert. denied, 51 U.S. 1071, 115 S.Ct 1709 (1995) (showing of prejudice must be "significant" in non-capital case to satisfy Strickland requirement). Here, Cracker's conclusory allegations fail to raise a colorable basis for habeas corpus relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings). Consequently, he is not entitled to the relief he seeks.
Crocker was given a full and fair opportunity to develop the factual basis of this claim in state court through his art. 11.07 application for habeas relief where he could have obtained an affidavit from his attorney detailing their discussions, if any, regarding the alleged plea offer. However, he failed to do so. Because he failed to develop the factual "basis of this claim, Crocker is not entitled to an evidentiary bearing on this claim in federal court. See 28 U.S.C. § 2254(e)(2); Riddle v. Cockrell, 288 F.3d 713, 719 (5th Cir. 2002), cert. denied, 537 U.S. 953, 123 S.Ct 420 (2002) (petitioner failed to exercise "due diligence" where no affidavits were presented to state court in support of his ineffective assistance of counsel claim); Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir ___ ), cert. denied, 531 U.S. 957, 121 S.Ct 380 (2000).
Next, Crocker claims that counsel was ineffective for failing to seek a jury instruction on two lesser included offenses, attempted indecency with a child and attempted kidnapping. Petitioner's Memorandum p. 9. He argues that the touching of the child for which he was convicted could merely have been an attempt by the perpetrator to tighten his grip on the child so that she could not escape and that, under this scenario, there would be no intent on the part of the perpetrator to arouse or gratify sexual desire as required for a conviction on the indecency charge. Id. pp. 2-11.
In order to be entitled to a charge on a lesser included offense under Texas law, a criminal defendant must show (1) that the lesser offense is included within the proof of the offense charged and (2) that there is some evidence that he, if guilty, is guilty only of the lesser included offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct 313 (1993). However, if a defendant has presented evidence at trial that he committed no offense at all, a charge on the lesser-included offense is not required. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985); McKinney v. State, 627 S.W.2d 731, 732 (Tex.Crim.App. 1982); McCardell v. State, 557 S.W.2d 289, 290 (Tex.Crim.App. 1977); San Roman v. State, 815 S.W.2d 785, 788 (Tex.App. — El Paso 1991). If the evidence raises the issue of whether the accused is guilty only of charged offenses or not guilty of any offense whatsoever, a charge on the lesser included offense is not required Williams v. State, 796 S.W.2d 793, 799 (Tex.App.-San Antonio 1990); San Roman, 815 S.W.2d at 788.
Attempted indecency with a child is a lesser included offense of indecency with a child. See Jimenez v. State, 697 S.W.2d 768, 769 (Tex.App.-Corpus Christi 1985). In the instant case, Petitioner's defenses were misidentification and that the State failed to prove an element of the charged offense, "intent to arouse or gratify sexual desire." Statement of Facts Vol. 7 p. 115-116 Vol. 8 p. 13 (hereinafter SF Vol. ___ p. ___ .). In other words, he argued that he did not commit the offense and, that aside, the State failed to prove an element of the offense. Id. There was no evidence or any argument that, if Crocker was guilty, he was guilty only of attempted indecency with a child. Therefore, Crocker was not entitled to an instruction on attempted indecency and counsel cannot be deemed ineffective for failing to request the same.
Crocker claims that counsel was ineffective for failing to seek a jury instruction on the lesser included offense of attempted kidnapping. Under Texas Code of Criminal Procedure art. 37.09: An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
Attempted kidnapping requires proof of an attempt to knowingly or intentionally abduct another person. Tex. Penal Code §§ 15.01 20.03 (West 1999). Under Texas law, the term abduct means to restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found or by using threatening or deadly force. Tex. Penal Code § 20.01(2) (West 1999). The elements of kidnapping are not found within the elements of indecency with a child. See Tex. Penal Code § 21.11 (Indecency With a Child). Therefore, attempted kidnapping is not a lesser included offense of indecency with a child and Crocker was not entitled to a charge on attempted kidnapping. Counsel cannot be deemed ineffective for failing to request such a charge to the jury.
As suggested by Counsel for Respondent, the only way that the jury would have had an opportunity to consider the offense of attempted kidnapping would have been if the State had charged him with this crime in the indictment or if it had been a lesser included offense of a crime actually charged. Respondent's Answer p. 10.
Petitioner claims that counsel was ineffective when he inflamed members of the jury by having him, Crocker, disclose three prior felony convictions during testimony in the guilt-innocence phase of trial. When a criminal defendant testifies at trial, he places his credibility at issue and may be impeached by evidence of a prior felony conviction or of a conviction for a crime involving moral turpitude. See Tex. R. Evid. 609(a). Evidence of the prior conviction is admissible if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect. Id. In determining the admissibility of such evidence the court examines (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant's testimony; and (5) the importance of the credibility issue, White v. State, 21 S.W.3d 642, 646 (Tex.App. — Waco 2000, pet. ref'd) (citing Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App. 1992)). In ruling on the admissibility of prior convictions for impeachment purposes, trial courts have "wide discretion." Id. at 647.
Before he testified, Crocker was advised by his attorney that evidence of his prior convictions might be admissible if he chose to testify. SF Vol. 7pp. 6 10. Crocker testified that he understood this and that he still wanted to testify on his own behalf. Id. at p. 7. Cracker's first conviction was for a burglary occurring approximately 14 years prior to his conviction in the instant case. SF Vol. 7 p. 9-10. He spent three months in jail and was sentenced to 5 years probation. Id. at p. 11. The record reflects that Crocker had problems abiding by the conditions of his probation and that he was still serving probation on the burglary conviction 5 years prior to the conviction at issue in the instant case. Id. at pp. 11 18-20. His second conviction was for theft which occurred approximately 8 years prior to the instant offense and his third conviction was also for theft occurring 5 years prior to the instant offense. Id. at pp. 16-17 20.
In reviewing the five factors which would have been considered by the trial court had Crocker's attorney challenged the admissibility of the prior convictions, it is readily apparent that the trial court would likely have admitted the evidence. Burglary and theft are crimes of deception. See White, 21 S.W.3d. at 647. "The impeachment value of a crime involving deception is higher than the impeachment value of a crime involving violence." Id. (citing Theus, 845 S.W.2d at 881). Thus, the first factor would have weighed in favor of admitting the evidence. Second, the temporal proximity of each of Crocker's two theft convictions was within the 10 year limit set by Tex, R. Evid, Rule 609(b) and he was still serving probation on the burglary conviction within the 10 year period. Thus, the second factor would have weighed in favor of admitting the evidence. Third, Crocker's prior convictions for burglary and theft are not at all similar to the instant offense of indecency with a child. Therefore, the third factor would have weighed in favor of admitting the evidence. The fourth and fifth factors, the importance of the defendant's testimony and the importance of his credibility are related. Theus, 845 S.W.2d at 881. Where, as in the instant case, a defendant testifies professing his innocence and presents no alibi defense, the importance of the defendant's testimony and his credibility escalates as does the need for the State to be afforded the opportunity to impeach his credibility. See White, 21 S.W.3d at 647. Thus, the fourth and fifth factors would have weighed in favor of admitting the evidence of Crocker's prior convictions.
Because it is readily apparent that evidence of Crocker's prior convictions would have been admitted, counsel cannot be deemed ineffective for electing to bring that evidence before the jury through direct examination of Crocker rather than waiting for the State to use it for impeachment purposes. Moreover, considering Crocker's desire to testify on his own behalf, bringing in evidence of the prior convictions on direct examination can be construed as nothing other than sound trial strategy. Crocker is not entitled to relief on this claim.
Finally, Crocker claims that the evidence was insufficient to support his conviction. Specifically, Crocker argues that the State failed to adduce sufficient evidence to show that the perpetrator of the crime grabbed the victim in a manner intended to arouse or gratify sexual desire, an element of the offense. The Second Court of Appeals in Forth Worth reviewed the evidence from Cracker's trial and found it sufficient to support his conviction. Crocket v. State, No. 2-98-246-CR Slip. Op at 2-4 (Nov. 4, 1999). Crocker has failed to establish that this finding was contrary to federal law or unreasonable in light of the evidence presented at trial. See 28 U.S.C. § 2254(d), Moreover, the appeals court finding is fairly supported by the record. Thus, Crocker is not entitled to habeas relief.
For the foregoing reasons, IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
The Clerk of Court shall transmit a true copy of this Order to Petitioner and to Counsel for Respondent.