Opinion
No. 3:02-CV-0036-L.
December 10, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural and Factual History : On September 22, 1998, Petitioner was indicted for the offense of the capital murder of Hector Cavazos in the course of the kidnaping of the said Cavazos. (CR at 2-3.) The evidence at trial showed that Petitioner and co-defendant David Else killed Cavazos because they were angry at him for losing their money in a disrupted drug transaction. Affirming the conviction, the state court of appeals described this evidence as follows:
"CR" refers to the state trial clerk's record in Cause No. F98-02346-WU.
Appellant and David Else were tried jointly for Hector Cavazos's murder. Appellant's indictment alleged that he knowingly and intentionally caused Cavazos's death "by placing gasoline, a deadly weapon on [Cavazos], and by igniting said gasoline, a deadly weapon, and the defendant intentionally did cause the death of the deceased while the said defendant was in the course of committing and attempting to commit the offense of kidnapping [sic] of [Cavazos]." See TEX. PEN. CODE ANN § 19.03(a)(2) (Vernon 1994).
Marcy Harris, a paramedic and firefighter with the Dallas Fire Department, testified that at about 1:30 A.M. on May 14, 1998, she was dispatched to a location in response to a call about an injured person. When she arrived, she found Cavazos yelling for help. Cavazos had been burned over ninety-five percent of his body. Harris could also tell that Cavazos had been beaten up — one of his eyes was swollen and he had facial abrasions. A bystander was removing a belt from around one of Cavazos's wrists. Cavazos told Harris that "some black guys" had poured gasoline on him and burned him. Harris and her partner took Cavazos to the hospital. Cavazos died later that day from his burn injuries.
Eric Watson, a friend of Cavazos's, was the State's key witness. Watson testified that on the afternoon of May 13th, Cavazos got a call on his cell phone. When he got off the phone, he asked Watson if he wanted to make some quick money. Cavazos told Watson that if he rode around in a car with someone for about thirty minutes, Cavazos would pay him $1000. Watson knew it was a drug deal, but agreed to participate.
Kerry Cheatham soon arrived at the shop in a Cadillac. Cavazos told Watson to get in the car with Cheatham and "go get the other half." Watson assumed he and Cheatham were going to get the other half of the money that would be used to purchase drugs. Watson thought he was going along to keep Cheatham from getting "ripped off." Cheatham drove to an IHOP restaurant where they met appellant in the parking lot. Appellant gave Cheatham a big "bulk of something." Cheatham then got a call on his cell phone from Cavazos. After the call, Cheatham and Watson met Cavazos. Cheatham told Cavazos that he had $16,000, the "other half." Cavazos then said he was "going to get it" and told Cheatham and Watson to drive around. Cavazos left with the money; Watson thought Cavazos was going to get drugs. Watson and Cheatham waited for a call from Cavazos. First, Cavazos called and told Cheatham it was going to take him a while longer. Then Cheatham got another call from Cavazos and handed the phone to Watson. Cavazos told Watson that he "had gotten jacked for the money and that they had shot Alex." (Watson did not know Alex, but said he was someone Cavazos was supposed to get drugs from.) Cavazos sounded weak and scared. Watson and Cheatham drove to pick up Cavazos, who was outside a residence. His lip was "busted" and his shirt was torn. Cavazos told them he had gone to a house where he had been beaten, but was able to run away. Cheatham said they needed to tell appellant what had happened, so they went back to the IHOP to meet appellant.
At the IHOP, appellant got in the Cadillac with the three men, and they eventually drove to a City garage. Appellant asked Cavazos what had happened, and Cavazos told him he had been jacked. Appellant became angry and frustrated. The men got out of the car, and appellant told Cavazos he had better get appellant's money or his drugs or he would kill Cavazos and Watson. Appellant told Cavazos he did not believe or trust him. Cavazos started making phone calls in an attempt to get someone to front him the drugs. Appellant then asked Cavazos to show him where he had gotten jacked. The men drove through a neighborhood looking for the house, but could not find it. Cavazos could not remember exactly where it was. Appellant again threatened to kill Cavazos and Watson if they did not get his money or drugs. Appellant began to periodically hit Cavazos in the face. He also tried to break Cavazos's neck.
Appellant then said that they were going to pick up "his boy." They drove to a recording studio in Las Colinas and arrived sometime between nine and ten at night. They picked up David Else, who was carrying a black bag.
Cavazos continued to make calls and eventually said he could get $4000 from someone named "Carlos." The men drove to Elrod's Cost Plus to meet Carlos. Carlos walked up to the driver's door of the Cadillac and handed Cheatham the money. The men left and drove to an alley way. Appellant was very angry. According to Watson, appellant later said he had recognized the money Cavazos got from Carlos as appellant's own money.
In the alleyway, Cheatham, Else and appellant got out of the car. Eventually Else came back to the car, told Cavazos "[expletive deleted], you don't [expletive deleted] with our money," and started to hit him. Then appellant dragged Cavazos out of the car and knocked him down. Cheatham, Else, and appellant all started beating Cavazos. Watson testified that appellant and Else were the most aggressive. The beating continued for five to ten minutes, at which time, Cheatham, appellant, and Else tied up Cavazos. Then appellant and Else put him in the trunk of the Cadillac. Cheatham, Else, and appellant got back in the car with Watson. Appellant said they were going to throw Cavazos and Watson off a bridge. When they stopped to do so, another car came and they left. Then they went to Cavazos's house to look for his car, but it was not there. Then appellant said, "let's burn this [expletive deleted]." They drove to a 7-Eleven. Appellant went in the store and returned with a plastic gas can he had purchased. Appellant told Cheatham to find a place where he could take Cavazos and burn him. They drove around and eventually turned on a dirt road. When the car stopped, everyone but Watson got out. The men took Cavazos out of the trunk, and appellant and Else took him to an empty lot. Watson saw the gas can in appellant's hand. Cheatham, Else, and appellant started beating Cavazos and telling him it was his last chance. Watson saw someone "spark a torch." That man dropped the torch on Cavazos and the flames shot up. Cavazos began screaming and running around. Watson testified that either appellant or Else started the fire because they were big and stocky. (Watson testified that Cheatham is tall, thin, and not muscular.) Also, appellant and Else were both wearing white T-shirts. When the fire started, all three men were standing near Cavazos. The three men then ran back to the car. Else brought the gas can with him. Watson heard Else say, "that was easy." They drove away, and eventually, a police car pulled them over. When the officer got out of the car and started walking to the Cadillac, Cheatham drove away. The police followed them until Cheatham wrecked the car. Cheatham, appellant, and Else ran away. Watson stayed and told an officer what had happened.
Katherine Long, a forensic seriologist, testified that she found human blood stains on several items of Else's clothing. Long also identified the presence of human blood on appellant's shoe and pants. Carolyn Van Winkle performed DNA testing on these items. She testified that the DNA present on those items was consistent with Cavazos's blood sample. James Adams, a trace evidence analyst, testified that gasoline was present on Else's black bag and on a shoe belonging to appellant.Earl v. State, No. 05-99-00237-CR, slip op. at 2-5 (Tex.App.-Dallas 2000, pet. ref'd). Petitioner filed a pro se petition for discretionary review by the Texas Court of Criminal Appeals, which was refused on September 13, 2000. Earl v. State, No. 1356-00. Petitioner then filed his application for writ of habeas corpus in state court on July 29, 2001 (State Habeas Record [hereinafter "SHR"] at 2-3.), which entered findings of fact and conclusions of law on September 14, 2001. (SHR at 134-39). The Texas Court of Criminal Appeals denied relief on these findings without a written order on November 21, 2001. (SHR at cover.)
Specifically, Van Winkle testified that the probability of selecting an individual at random having such markers is about one in 40,000 Caucasians, one in 250,000 African-Americans, and one in 64,000 Hispanics.
D. Substantive Issues : Petitioner asserts that he is being held unlawfully by respondent on the following ten grounds:
1. Trial counsel was ineffective for failing to object to the prosecutor's continuous misstatement of the law, resulting in petitioner being deprived of due process of law (sic);
2. Appeal counsel was ineffective for failing to raise the ground of error that the trial court made no affirmative finding that the petitioner used a deadly weapon as charged, resulting in petitioner being deprived of due process of law.
3. The evidence adduced at petitioner's trial was insufficient to sustain petitioner's conviction of capital murder, resulting in petitioner being deprived of due process of law.
4. Trial counsel was ineffective for failing to object to jury charge which was unsupported by evidence, resulting in petitioner being deprived of due process of law.
5. Trial counsel was ineffective for failing to file a motion for severance, resulting in petitioner being deprived of due process of law.
6. The State prosecutor committed misconduct by eliciting known false testimony material to petitioner's conviction, resulting in petitioner being deprived of due process of law.
7. The State prosecutor committed misconduct by violating petitioner's pretrial Brady motion order, resulting in petitioner being deprived of due process of law.
8. The State prosecution team committed misconduct by failing to preserve evidence material to petitioner's defense, resulting in petitioner being deprived of due process of law.
9. Petitioner was denied effective assistance of appeal counsel, resulting in petitioner being deprived of due process of law.
10. Trial counsel was ineffective for failing to investigate a 911 call made from the crime scene, resulting in petitioner being deprived of due process of law.
Although listed here in the order pleaded, the Court will group the issues and address them in a different order.
Petition at II. Petitioner also requests discovery and an evidentiary hearing.
E. Exhaustion : In his answer to the original petition, Respondent stated that the claims raised in the petition appeared to have been exhausted. (Ans. at 6.) Therefore, he did not request that any of those claims be dismissed or denied on exhaustion grounds.
Respondent combined Petitioner's grounds two and nine, both of which were separately presented to the state court. This resulted in a different number of claims listed in Respondent's Answer.
II. APPLICABLE LAW
The standard of review in federal habeas proceedings is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), which provides, in pertinent part:
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.
Since the petition in this case was filed after April 24, 1996, the above-cited provision of the AEDPA applies to those claims which were adjudicated on the merits. Lindh v. Murphy, 521 U.S. 320, 326-27 (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).
Section 2254(d)(1) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). 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, 412-3 (2000). With respect to 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. Under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal precedent 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." Id.
Section 2254(d)(2) concerns questions of fact. See Moore v. Johnson, 225 F.3d 495, 501, 504 (5th Cir. 2000). The resolution of a factual issue by a state court is presumptively correct and will not be disturbed unless the prisoner rebuts the presumption by clear and convincing evidence. See, id.; 28 U.S.C. § 2254(e)(1). Under § 2254(d)(2), a state court's ultimate decision based upon those factual determinations "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first, second, fourth, fifth, ninth and tenth claims for relief, Petitioner contends that his right to the effective assistance of trial and appellate counsel was violated.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. Amend. VI. The two-pronged standard by which a claim of ineffective assistance of counsel is measured is set forth in Strickland v. Washington, 466 U.S. 668, 698 (1984). The first prong of Strickland requires the defendant to show that counsel's performance was deficient. Strickland, 466 U.S. at 698. To prove deficiency, a defendant "must show that counsel's performance fell below an objective standard of reasonableness." Id. at 687-88. This requires a showing that the errors made by his counsel were so serious that such counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. This court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.
The second prong of this test requires the defendant to show prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Strickland, 466 U.S. at 697.
A. Trial Counsel
Petitioner contends that his right to the effective assistance of counsel at his trial was violated by counsel's failure to (1) object to the prosecutor's continuous misstatement of the law, (2) object to a defective jury charge that was unsupported by the evidence, (3) file a motion for severance, and (4) investigate a 911 call made from crime scene. The Court addresses each claim in turn.
1. Failure to Object to Misstatements
In his first claim for relief, Petitioner complains of trial counsel's failure to object to the prosecutor's "continuous misstatement" of the state law of parties, particularly as it relates the proof necessary to find Petitioner guilty of capital murder. (Pet. at 12.) For example, Petitioner quotes the prosecutor's argument as follows:
In this case we have to prove the gasoline was placed on Hector and that it was ignited. But you know what ladies and gentlemen, we don't have to prove which one lit the match and set him on fire, that's not an element we have to prove, just that it was done and they acted either as primary parties and did it, or they acted as a party in aiding and assisting in the act.
(Pet. at 13; Reporter's Record, Vol. III at 109 [hereinafter cited at RR-volume at page]).
The decision not to interpose objections to the opposing counsel's jury argument is a matter of trial strategy. See Wiley v. Puckett, 969 F.2d 86, 102 (5th Cir. 1992) (Defense attorney "could reasonably have decided not to risk antagonizing the jury by objecting, or he could have decided that his best strategy was to let his own closing argument (recited before the prosecutor's) speak for itself"); Drew v. Collins, 964 F.2d 411, 423 (5th Cir. 1992) ("A decision not to object to a closing argument is a matter of trial strategy."). Even so, the prosecutor's argument appears to be consistent with state law, which is otherwise beyond the reach of this court to reinterpret.
Whether trial counsel properly interpreted and applied this state law has already been determined adversely to Petitioner. (State Habeas Finding [hereinafter "SHF"] Nos. 107-112, 128-29; SHR at 538-39, 544-45). Federal courts in post-conviction habeas corpus proceedings do not sit to review questions of state law. See Engle v. Isaac, 456 U.S. 107, 119-21 (1982); see also Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000) (referring to "the long-standing principle that federal courts do not sit to review questions of state law."); Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir. 1991) ("We will not review a state court's interpretation of its own law in a federal habeas corpus proceeding"). Accordingly, trial counsel's interpretation and application of this state law may not now be used as a basis for finding his representation deficient.
In the direct appeal, the Fifth District Court of Appeals at Dallas summarized applicable Texas law as follows:
A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon 1994). Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Burdine v. State, 719 S.W.2d 309, 15 (Tex.Crim.App. 1986).
It then concluded that, based upon the evidence presented at the trial, "a rational jury could have found beyond a reasonable doubt that, if appellant did not personally set the fire, he encouraged, aided, or directed Else or Cheatham to do so." Earl, No. 05-99-00237-CR at 8; (St. Hab. R. at 120).
However, even if trial counsel's conduct were somehow deficient in this regard and not the result of any reasonable trial strategy, the evidence admitted at trial (as supported by the determination by the state courts that the evidence was sufficient to convict under the jury's charge) displays a lack of prejudice flowing from this decision. See Strickland, 466 U.S. at 694. Petitioner has satisfied neither prong of Strickland and therefore his first claim for relief must be denied.
2. Failure to Object to Jury Charge
In his fourth claim for relief, Petitioner complains of trial counsel's failure to object to a "jury charge which was fundamentally defective" because it was unsupported by the evidence. (Pet. at 30.) Specifically, Petitioner complains of the effect of the Texas law of parties to allow a conviction based upon evidence that does not affirmatively establish the identity of the principal actor.
However, this claim again relies upon an interpretation of the state law of parties which is contrary to the interpretation by the state courts. The common law made distinctions between principals and accomplices. See e.g., Crook v. State, 27 Tex.App. 198, 239, 11 S.W. 444, 445 (1889). With the enactment of statutes setting forth the modern law of parties, each co-actor is considered independently culpable as a principal actor, and a conviction is no longer subject to attack based upon distinctions between accessories and principals. See e.g., Singletary v. State, 509 S.W.2d 572, 578 (Tex.Crim.App. 1974) (holding statute prevents invalidation of conviction of accomplice due to acquittal of principal); Zupanec, Donald, Annotation, Acquittal of Principal, or his Conviction of Lesser Degree of Offense, as Affecting Prosecution of Accessory, or other Aider or Abettor, 9 A.L.R.4th 972 (1981).
Section 7.03 of the Texas Penal Code provides, in part, that
In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
* * *
(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
TEX.PEN. CODE ANN. § 7.03 (Vernon 1994) (Emphasis added). Therefore, it is no longer necessary to determine which co-actor was the principal in order to convict.
In the instant case, the proof at trial established that an offense had been committed and that Petitioner acted at least as an active party to the murder if not the primary actor. See Earl, slip op at 8. Petitioner's counsel was not deficient for failing to object to the state court following state law in the jury instructions. Therefore, the charge to the jury was supported by the evidence and neither deficient performance nor prejudice has been shown. Petitioner's fourth claim for relief is without merit and should be denied.
3. Failure to File Motion for Severance
In his fifth claim for relief, Petitioner complains of trial counsel's failure to file a motion for severance. (Pet. at 35.) Though his trial took place in a state court, Petitioner relies on a federal procedural rule in support of his argument that his trial counsel was deficient. Petitioner also complains that both he and a co-actor, David Else, were wrongly tried together in the same trial because the jury was instructed on each co-defendant as a primary actor and then, alternatively, as a party to each other. Both of these arguments lack merit.
Petitioner cites Rule 14 of the Federal Rules of Criminal Procedure, which has no direct application in a Texas state trial court.
Petitioner does not show that his counsel could have obtained a severance. Even so, such a decision would normally be within the range of reasonable trial strategy. See, e.g., Barrientes v. Johnson, 221 F.3d 741, 775-76 (5th Cir. 2000). Nothing produced before this court by Petitioner rebuts the presumption that this decision was a matter of reasonable trial strategy. In fact, it appears that the joint trial of these co-defendants was a strategy that Petitioner also desired. Petitioner pressed his attorney to object to the severance of another co-actor ( See Brooks Aff. at 1; SHR at 140), and personally expressed to the trial court his distress about the severance of a co-actor from his trial. (RR-Pretrial 11-30-98 at 4, 7-10.) Having so strongly complained about the severance of a co-actor, Petitioner's complaint about his counsel's strategy not to pursue a similar severance appears disingenuous. See, e.g., United States v. Weaver, 882 F.2d 1128, 1140 (7th Cir. 1989) (holding that informed defendant who agreed to a particular strategy at trial could not later raise ineffective assistance claim based upon that strategy). Petitioner's fifth claim for relief should be denied.
4. Failure to Investigate 911 Call
In his tenth claim for relief, Petitioner complains of trial counsel's failure to investigate the 911 call made about the decedent Cavazos. (Pet. at 53; RR-IV at 46.) Petitioner suggests that a more extensive investigation might have turned up the identity of the caller, who might have seen the assault, which in turn might have lead to the discovery of exculpatory evidence. (Pet. at 55-56.)
To establish his failure to investigate claim, Petitioner must allege with specificity what the investigation would have revealed and how it would have benefitted him. United States v. Glinsey, 209 F.3d 386, 393 (5th Cir. 2000) (citing United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). This Court has liberally construed Petitioner's pleadings because he is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir. 1998); Russell v. Knight, 488 F.2d 96, 97 (5th Cir. 1973). However, this Court cannot insert missing facts into his petition, particularly in light of the proof presented to the state habeas court that his trial counsel investigated this matter before trial, determined that the 911 call could not be traced to an individual, and that trial counsel consulted with Petitioner about this prior to trial. ( See Brooks Aff. at 1; SHR at 140). Further, the prosecutor's investigation and supporting documents submitted to the state habeas court confirmed that only the area code was recorded, so that no telephone number could be traced. ( See Aff. of Long at 1; SHR at 130, 133). Since the investigation conducted by trial counsel supports his decision to focus further investigation elsewhere, Petitioner has failed to show that trial counsel failed to exercise reasonable professional judgment in the investigation of this matter. See Wiggins v. Smith, 539 U.S. 510, 522-23 (2003). Since nothing is alleged to show that any further investigation would have been more fruitful, Petitioner has also failed to demonstrate prejudice. See Strickland, 466 U.S. at 694. Petitioner's tenth claim for relief lacks merit and should be denied. B. Appellate Counsel
As set forth in section VI below, since the allegations are insufficient to support relief, they are also insufficient to grant Petitioner's motion for discovery.
In his second and ninth claims, Petitioner also contends that his right to the effective assistance of counsel in his direct appeal was violated by counsel's failure to raise the grounds of error that (1) the trial court made no affirmative finding that petitioner used a deadly weapon as charged in petitioner's indictment and (2) the prosecutor elicited false testimony from Officer Conde.
Appellate counsel's performance on appeal is judged under the same two-pronged standard set forth above in Strickland v. Washington. See 466 U.S. at 698; Smith v. Robbins, 528 U.S. 259, 286 (2000); Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001). To satisfy the first prong of Strickland, Petitioner must show that the performance of his appellate counsel was deficient in an objectively unreasonable manner. Robbins, 528 U.S. at 285. Further, "[t]he Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989). Instead, Appellate counsel should winnow out "weaker arguments on appeal" and focus on "one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1983) ("For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders [v. California, 386 U.S. 738 (1967)]. Nothing in the Constitution or our interpretation of that document requires such a standard.") To satisfy the second prong of Strickland, Petitioner must at least "show a reasonable probability that, but for his counsel's unreasonable failure . . . he would have prevailed on his appeal." Briseno, 274 F.3d at 207 (citing Smith, 528 U.S. at 285). Again, the court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Strickland, 466 U.S. at 697.
1. Failure to Appeal No Finding of Use of Deadly Weapon
In his second claim for relief, Petitioner complains of appellate counsel's decision to not raise as error on appeal the trial court's lack of an affirmative finding that Petitioner used a deadly weapon. (Pet. at 19.) Petitioner's claim does not satisfy either prong of Strickland. This matter of state law appears irrelevant to Petitioner's conviction or sentence. An affirmative finding by a Texas court regarding the use of a deadly weapon can affect the convicted person's eligibility for probation and parole. See TEX. CODE CRIM.PRO. art. 41.12 § 3g(a)(2); Barnes v. State, 56 S.W.3d 221, 240 (Tex.App.-Fort Worth 2001). However, Petitioner was convicted of capital murder for which the minimum punishment is life incarceration without parole eligibility for a greater minimum term of years than any case involving merely an affirmative finding of deadly weapon use. See TEX. GOV. CODE ANN., Sec. 508.145(b) (d). Therefore, Petitioner's second claim lacks merit and should be denied.
2. Failure to Discover and Appeal Elicitation of False Testimony
In his ninth claim, Petitioner also complains of the failure of his appellate counsel to discover and raise the "obvious and crucial trial error" that the prosecutor elicited false testimony from Irving Police Officer Olegar Conde. (Pet. at 53.) Officer Conde testified to the fact of the car chase in which the car containing Petitioner, Else, Cheatham and Watson was wrecked. The other three occupants of the vehicle fled from the police, but not Watson, who instead went toward the police car. (RR-IV at 176.) Officer Conde observed Watson to be "very shaken, very pale, very scared." (RR-V at 138.) Watson blurted out three time to Officer Conde, "sir, they just killed my friend," and then said, "They had him in the trunk. They beat him up and that (sic) they set him on fire off of Red Bird Lane and made me watch them." (RR-V at 139.) Officer Conde also testified that he told other police officers the approximate location of the burn victim that Watson had given him, and expressed his belief that the other officers forwarded that information to an officer working that part of town. (RR-V at 140.) Then the prosecutor asked this question:
Q. And sure enough, later, was the victim located there?
A. Yes, sir, he was. (RR-V at 140-41.) The evidence also showed that the burn victim was located at the place described by Watson. Petitioner does not dispute this part, but instead claims that this testimony was "false" because the prosecution's evidence also proved that a 911 call had already been received to report the burn victim before this location information was related by Watson. (Pet. at 43.) This may have created the false impression that the burn victim was found because of Watson rather than because of the 911 call.
Even if such an evidentiary matter could have been raised in his direct appeal, it would not have availed Petitioner. In resolving this discrepancy during the state habeas proceedings, the habeas court received the prosecutor's explanation that the question was not asked to establish that Watson was responsible for the victim being found, but merely that the location of the burn victim given by Watson was shown to be true, corroborating Watson's statements to the officer. (Aff. of Long at 2; SHR at 131). Thus, the prosecution used this testimony to tie Petitioner to this crime rather than to credit Watson with the discovery of the victim. Although this testimony could have been misunderstood, there was no showing of any intent to deceive in the presentation of this testimony, nor how any false aspect of this testimony was material to this case. See Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000). Petitioner has not shown appellate counsel to have been factually or legally deficient regarding this alleged error, nor has he established any prejudice. Therefore, his ninth claim should be denied.
The only showing before this Court on the issue of whether this type of challenge was available to Petitioner's attorney in his direct appeal is to the contrary. ( See Nation Aff. at 2; SHR at 125). However, it is unnecessary to resolve this matter, since this claim lacks merit.
None of the allegations of ineffective assistance of counsel are sufficient to establish a right to habeas corpus relief. Accordingly, Petitioner's first, second, fourth, fifth, ninth and tenth claims for relief on this basis should all be denied.
IV. SUFFICIENCY OF THE EVIDENCE
In his third claim for relief, Petitioner complains that the evidence is insufficient to sustain his conviction for capital murder. (Pet. at 24.) This claim raises the same challenge to the state court's interpretation of the state law of parties that was the basis for Petitioner's first and fourth claims for relief, i.e., whether the prosecution was required to prove which of the two co-actors was the primary actor. Petitioner argues that since the prosecution's eyewitness could not affirmatively testify which of these two co-actors actually set the victim on fire, the evidence should be held insufficient to sustain Petitioner's conviction as a party. (Pet. at 24-29.) Petitioner also again asserts the absence of a finding on deadly weapon use in further support of this claim.
Petitioner also asserts the absence of an irrelevant instruction or finding as supporting this claim. However, as set forth in the discussion of the state law concerning affirmative findings of the use of a deadly weapon, the lack of this finding has no bearing on Petitioner's case. See supra, Section III, subsection A.
This claim was first presented to the state appellate court in Petitioner's direct appeal. "In reviewing the legal sufficiency of the evidence, this Court must determine whether, considering the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Earl v. State, slip op. at 7 (citing Jackson v. Virginia, 443 U.S. 307 (1979)). The state court summarized the facts pertinent to this claim as follows:
Here, appellant became angry when Cavazos reported he had lost appellant's money and did not have his drugs. Appellant threatened to kill Cavazos. When Cavazos produced money that appellant believed had originally belonged to appellant, appellant dragged Cavazos out of the car and participated in beating him, tying him up, and putting him in the trunk. According to Watson, it was appellant's idea to burn Cavazos. Appellant said, "let's burn this [expletive deleted]." He also told Cheatham to find a place where he could burn Cavazos. Appellant and Else took Cavazos out of the trunk and to the empty lot where the murder occurred. Watson saw the gas can, which appellant had purchased that night, in appellant's hand just before the fire. When the fire started, Cheatham, Else, and appellant were all near Cavazos. Watson testified that either appellant or Else set the fire. Blood consistent with Cavazos's was found on the clothing appellant was wearing that night, and gasoline was present on one of appellant's shoes. Based on this evidence, a rational jury could have found beyond a reasonable doubt that, if appellant did not personally set the fire, he encouraged, aided, or directed Else or Cheatham to do so.Earl v. State, slip op at 8. This holding is supported by the record before this court.
The crux of Petitioner's claim attacks the state court's reliance upon the state law of parties. However, as discussed above, such a complaint is not cognizable in this proceeding because it would require this court to review a question of state law. See Engle, 456 U.S. at 119-21; Cain, 215 F.3d at 494; Dickerson, 932 F.2d at 1145. Further, as also set forth above in the discussion of the state law concerning affirmative findings of the use of a deadly weapon, the lack of an affirmative deadly weapon finding has no bearing on Petitioner's case. See Barnes v. State, 56 S.W.3d at 240. Petitioner's third claim for relief is without merit and should be denied.
V. PROSECUTORIAL MISCONDUCT
In his sixth, seventh, and eighth claims for relief, Petitioner complains of prosecutorial misconduct depriving him of due process of law.
A. Elicitation of False Testimony
Petitioner's sixth claim is that the prosecutor "elicited known false testimony" regarding whether state's witness Eric Watson actually "directed" police and paramedics to the discovery of Hector Cavazos. (Pet. at 42-45.)
The Due Process Clause of the Fourteenth Amendment to the United States Constitution "forbids the State from knowingly using perjured testimony where there is a reasonable likelihood that such testimony will affect the verdict." Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000) (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)). Due process is also violated when the State knowingly offers false testimony to obtain a conviction and fails to correct such testimony. Thompson v. Cain, 161 F.3d 802, 808 (5th Cir. 1998) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)).
To obtain habeas relief for knowing use of perjured testimony or failing to correct known false testimony, petitioner must show that the testimony was actually false, the prosecutor knew it was false, and the evidence was material. See id. (failing to correct known false testimony); Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir. 1994) (suborning perjury). "Evidence is false if, inter alia, it is specific misleading evidence important to the prosecution's case in chief." Barrientes, 221 F.3d at 753 (quoting Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997). Evidence is "material" when it is "a highly significant factor reasonably likely to have affected the jury's verdict." Blackmon, 22 F.3d at 565. As to "reasonable likelihood," the United States Supreme Court has treated this requirement as "synonymous with 'reasonable possibility' and thus ha[s] equated materiality in the perjured-testimony cases with a showing that suppression of the evidence was not harmless beyond a reasonable doubt." See Strickler v. Greene, 527 U.S. 263, 299 (1999) (Souter, J., concurring). The Supreme Court has defined the harmless-beyond-a-reasonable-doubt standard as no "'reasonable possibility' that trial error contributed to the verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
The substance of Petitioner's complaint has already been discussed in connection with Petitioner's ninth claim, and has been shown not material in that it was intended and used solely to show that the victim was found where the state's witness said he would be found, not to attribute credit to such witness for the discovery of the victim. Therefore, it is not reasonably likely to have affected the jury's verdict. Further, although this testimony was capable of being misunderstood, it is not shown to be accompanied with any intent to deceive by the prosecution, nor does any arguably "false" aspect of this evidence appear important to the prosecution's case-in-chief. Accordingly, none of these elements are shown, and Petitioner's sixth claim does not rise to the level of a violation of due process.
B. Failure to Preserve Evidence
Petitioner asserts that the prosecutor violated a duty to preserve and disclose certain evidence related to this testimony. Petitioner's seventh claim alleges that the prosecutor violated the "pretrial Brady motion order" by failing to preserve the 911 dispatch call audio recording, and Petitioner's eighth claim alleges that the prosecution team failed "to preserve evidence material to petitioner's defense" regarding that same recording. Both of these claims appear to rely upon the prosecutor's duty to disclose evidence favorable to the accused as set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
In Brady, the Supreme Court held that a prosecutor must disclose evidence to a criminal defendant if that evidence is favorable to the defendant and material to his guilt or punishment. 373 U.S. at 87. " Brady claims involve 'the discovery, after trial of information which had been known to the prosecution but unknown to the defense.'" Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
"[E]vidence is 'material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5 (1995). Suppressed evidence is not considered material within the meaning of Brady when similar evidence is admitted before the trier of fact. E.g., Jackson v. Johnson, 194 F.3d 641, 650 (5th Cir. 1999); Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996).
The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In other words, there must be "a 'significant possibility' of a different result to characterize the Brady materiality standard." Strickler, 527 U.S. at 300 (Souter, J., concurring). In any event, the touchstone inquiry remains "whether the evidentiary suppression 'undermines our confidence' that the factfinder would have reached the same result." Id. at 300-01.
Petitioner has failed to establish any of these elements. There is no indication that any records ever existed to show the identity of the caller, or that any law enforcement official ever came into possession of exculpatory evidence in connection with this 911 call. Therefore, none of the elements required to make a claim under Brady are shown. Although not directly addressed in his Petition, this claim could be considered under Arizona v. Youngblood, 488 U.S. 51, 57 (1989), which held,
The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.
The Supreme Court went on to hold that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 58. Again, Petitioner has not shown that any failure to preserve evidence was the result of any bad faith on the part of law enforcement personnel. Therefore, Petitioner's seventh and eighth claims for relief should also be denied.
VI. DISCOVERY AND EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, neither discovery nor an evidentiary hearing appears warranted.
Rule 6(a) of the Rules Governing 2254 Cases provides that either party "shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Good cause for discovery is determined from an examination of petitioner's pleadings, and may be found when a petition for habeas corpus relief "establishes a prima facie claim for relief." Harris v. Nelson, 394 U.S. 286, 290 (1969). Additionally, a petitioner's factual allegations must be specific, as opposed to merely speculative or conclusory, to justify discovery under Rule 6. See Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000); West v. Johnson 92 F.3d 1385, 1399-1400 (5th Cir. 1996).
Since the allegations of the petition are insufficient to authorize relief, there is no need to allow any further development of the facts. Further, there is no factual issue that needs to be resolved by an evidentiary hearing. Therefore, Petitioner's requests for discovery and an evidentiary hearing are denied.
VII. CONCLUSION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.