Opinion
CIVIL ACTION NO. 3:01cv34-M.
September 10, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Lawrence Gee Fannin (Fannin) is an inmate confined at the Estelle Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) at Huntsville. Respondent is the Director of TDCJ-ID.
Statement of the Case: Fannin is currently incarcerated pursuant to a judgment and sentence of the 363rd Judicial District Court of Dallas County, Texas, in Cause No. F-9777430-W, in which he was charged with the offense of aggravated sexual assault of a child. After pleading not guilty and waiving his right to a jury trial, the court found him guilty and thereafter assessed punishment at fifty years imprisonment.
Petitioner's punishment was enhanced by two prior felony convictions, both for forgery. See Appl. No. 17,078-02 at pg 180.
Fannin appealed his conviction which was affirmed by the Fifth Court of Appeals on December 10, 1999 in an unpublished appeal. No. 05-98-00452-CR. Petitioner did not file a petition for discretionary review with the Texas Court of Criminal Appeals. On March 6, 2000, Fannin filed a state application for writ of habeas corpus challenging his conviction pursuant to Texas Code of Criminal Procedure art. 11.07. Ex Parte Fannin, Appl. No. 17,078-02. On September 7, 2000, the trial court, after obtaining an affidavit from Fannin's trial counsel, Steven L. Seider, regarding Fannin's ineffective assistance of counsel claims, reviewed Fannin's application, Seider's affidavit, and all the trial court records, and thereafter made findings of fact and conclusions of law. The Texas Court of Criminal Appeals subsequently denied Wright's application without a written order on the findings of the trial court without a hearing.
In response to the instant petition and this court's show cause order, on June 18, 2001, Respondent filed an answer together with copies of Fannin's prior state proceedings. Wright filed his reply thereto on July 5, 2001. It is not claimed that Fannin has failed to exhaust state remedies and therefore his petition is before the court for review on the merits.
Findings and Conclusions: Fannin raises four grounds for relief, each relating to claims that he was denied effective assistance of counsel at trial.
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 v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984). When considering the reasonableness of counsel's conduct, a court must indulge a strong presumption that it falls within the wide range of reasonable professional competence, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct at 2065; Westley v. Johnson, 83 F.3d 714, 719 (5th Cir. 1996), cert denied, 519 U.S. 1094, 117 S.Ct. 773 (1997). In determining whether prejudice has resulted from counsel's alleged deficient performance, the court must determine whether counsel's performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1993).
A court reviewing an ineffectiveness claim need not consider the two prongs of the Strickland test in any particular order, because a failure to establish either one defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Amos v. Scott, 61 F.3d 333, 348 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557 (1995).
Moreover, pursuant to § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); See also Loyd v. Smith, 899 F.2d 1416, 1424 (5th Cir. 1990) ("Federal courts in habeas proceedings are required to grant a presumption of correctness to a state court's explicit and implicit findings of fact if supported by the record."), cert. denied, 508 U.S. 911, 113 S.Ct. 2343 (1993).
In his first ground, Fannin alleges that his attorney, Steven L. Seider (Seider), was deficient in failing to present four witnesses whose testimony would have been favorable to his defense.
Specifically, Fannin claims that counsel failed to call "Wayne", Fannin's lover, Officer Arlin Mason, one of the first investigators to respond to the underlying allegation, and the two medical doctors who examined the complainant-child but observed no physical injuries consistent with the complained of sexual abuse. Aside from the conclusory assertions in his art. 11.07 application, Fannin proffered no evidentiary support, by way of affidavit, to substantiate these claims in the trial court. Mr. Seider's affidavit states that he and Fannin fully discussed the possibility of procuring Wayne's testimony. See Appl. 17,078-02 at 141-143. Seider, requested and received $500 from the court to hire an investigator to assist in locating Wayne and to examine the medical records of the complainant-child. See Appl. at 141. However, after learning that Wayne originally reported the alleged offense, but who-according to Fannin-had allegedly committed the offense, Seider explained to Fannin the detrimental effect that Wayne's testimony could have on his defense. See id. Consequently, Fannin and Seider agreed that not calling Wayne was the preferred course of action, while still enabling counsel to argue that Wayne was an uninvestigated suspect. See id. Moreover, in his affidavit, Seider indicated that he received the complete medical history of the complainant-child and found nothing that needed to be further investigated.
Page 142 was not included in the State's writ record, however, the Attorney General's office provided the complete, three page, affidavit as an attachment to its Answer to this court. See Respondent's Answer at Exhibit B. Accordingly, any further citations regarding Seider's affidavit shall be thereto.
Not only is counsel entitled to a presumption that his performance was adequate, but "complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy." Wilkerson v. Cain, 233 F.3d 886, 892-893 (5th Cir. 2000) citing United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983). In Cockrell the Fifth Circuit further elaborated on this notion by stating that because "allegations of what a witness would have testified to are largely speculative, courts should view with great caution claims of ineffective assistance of counsel when the only evidence of a missing witness's testimony is from the defendant." 720 F.2d at 1427. Furthermore, "[i]n order for the [petitioner] to demonstrate the requisite Strickland prejudice, the [petitioner] must show not only that this testimony would have been favorable, but also that the witness[es] would have testified at trial." Alexander v. McCotter, 775 F.2d 595,602 (5th Cir. 1985), citing Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981). Since Petitioner has failed to present the affidavits of any of the uncalled witnesses, and the decision not to call Wayne as a witness was a matter of trial strategy, with which Fannin agreed, neither prong of the two part Strickland test discussed supra has been satisfied.
Fannin also alleges that Seider was deficient for failing to investigate and obtain evidence regarding (1) the effects of certain medications Petitioner was taking on his ability to knowingly and voluntarily execute a written confession and (2) whether the officer who elicited the confession behaved in a coercive manner. Petitioner further complains about counsel's failure to obtain a pretrial ruling on the Motion to Suppress Fannin's confession pursuant to Jackson v. Denno , and his failure to examine the original arrest warrant pursuant to his Motion for Discovery, Production and Inspection of Evidence.
378 U.S. 368, 845 S.Ct. 1774 (1964).
During his trial, Fannin testified that he was taking a lot of prescription drugs, including pain pills as well as medication for AIDS, his heart, and cancer. SOF Vol III at 88-89. However, when questioned by Mr. Seider regarding what effect these medications had at the time he gave his statement to police, all Fannin indicated was that they caused him to sleep late. Id. at 90-91. Fannin further complains that Seider was deficient for not securing a medical expert who could testify to the deleterious effects of these particular medications on Petitioner's mental capacity. However, according to Seider's affidavit to the trial court, both he and Fannin felt that beside an investigation into the medical records of the complainant-child "no other areas needed to be investigated." See Respondent's Answer Exhibit B at pg. 2. The trial court, in its findings of fact and conclusions of law, specifically found every statement contained in Seider's affidavit to be true and correct pursuant to its finding that Seider was a trustworthy individual. See Appl. 17,078-02 at pg. 138. Accordingly, in light of the presumption of correctness this court must indulge in favor of the trial court's determination, since Fannin has proffered no evidence to the contrary, let alone clear and convincing evidence, his claim fails.
Additionally, Fannin complains that the written confession he executed was a product of coercion by Detective Elton D. Fite. At trial, the only evidence adduced relating to this claim was testimony by Fannin that the incriminating portion of his confession was not true, and was written at the behest of Officer Fite based on the account provided the officer by the complainant-child. See SOF Vol 3 at 88, 95-99, 101, 103-104. To the extent any conflict existed between the testimonry of Detective Fite and that of Petitioner, it was solely within the province of the judge as trier of fact to decide the issues of weight and credibility. Moreover, Officer Fite specifically denied Fannin's allegation regarding coercion. See SOF Vol II at 97-103 and Vol III at 107. Therefore, Petitioner is not entitled to relief on this ground.
Fannin also alleges that Seider was ineffective in not obtaining a pre-trial ruling on his Motion to Supress Petitioner's confession. Since Fannin waived his right to a jury trial, there was no need or occasion to rule separately on the issue of the admissibility of his written confession. As noted above, Fannin's attack on the confession sponsored by Detective Fite went to the alleged truthfulness of the its contents, rather than to its voluntary character. Further Fannin's counsel lodged timely objections to the admissibility of his confession. See SOF Vol II at 117-118. The fact that the objections were overruled does not establish ineffective assistance of counsel.
Petitioner also complains about the fact that the original affidavit in support of the arrest warrant and the original warrant were not produced, noting that the copies of each produced at trial were unsigned. Although Detective Fite agreed that the copy of each respective document was not signed, he testified that the signed originals of each were on file with the Dallas County authorities. See Id. at 109. Accordingly, since Fannin cannot demonstrate the requisite prejudice occasioned by his counsel's not obtaining either a pre-trial ruling on the suppression of Petitioner's confession or the production of the original arrest warrant his ground fails. Fannin has presented nothing which undermines the veracity of Fite's testimony that the originals were signed, thus foreclosing any demonstration of prejudice.
Further, Petitioner alleges that Seider was ineffective because he advised him to testify on his own behalf at trial, but did not adequately prepare him for the inevitable impeachment based on his prior criminal record. More specifically, Fannin claims that the lack of preparation caused him to plead true to the two enhancement counts averred in his indictment. Additionally, Fannin claims that Seider made the case for impeachment by the prosecution easier by questioning Petitioner during direct examination regarding his prior criminal history.
The indictment in No. F-9777430-W alleged two prior forgery convictions, one in 1983 and a second in 1986. See Appl. 17,078-02 at pg 180.
Seider's affidavit, found credible by the state court, squarely refutes Fannin's claim that counsel did not apprize him that his prior convictions could be used to impeach him if he chose to testify. Further the record shows that Petitioner elected to testify on his own behalf. SOF Vol III at 72-73.
Seider stated that he explained to Fannin, on at least two occasions, that his prior criminal history, including the enhancement counts, would be admissible if he chose to testify. See Respondent's Answer Exhibit B at pg. 2.
The major thrust of this ground appears to be based upon Petitioner's belief that his prior convictions were too remote in time to be admissible. See TEX. R. EVID. 609(b) (which is identical to its federal counterpart.). Given the fact that Fannin was released from custody, on the more recent prior conviction, less than ten years before his trial in March 1998, both were admissible for impeachment. See, e.g., Robinson v. State, 681 S.W.2d 288, 289-90 (Tex.App.-San Antonio 1984, pet. ref'd.). Although Seider did not file a motion seeking to have the court weigh the probative value against possible prejudice, Fannin can show no prejudice under Strickland since he was tried in a bench trial.
The fact that Seider elicited Fannin's prior convicitions on direct examination, rather than waiting to have them disclosed on cross-examination, is consistent with the well-recognized strategy of seeking to "soften" their effect and demonstrating candor. Such strategy falls well within the objective standard of reasonable assistance of counsel required by the Sixth Amendment.
While acknowledgment of his prior convictions essentially relieved the State of the burden of proving up his prior convictions for enhancement, Fannin's assertion that he was forced to pled true to these paragraphs is frivolous given that he has shown nothing to establish that either was constitutionally infirm or otherwise unavailable for enhancement purposes.
Finally, Fannin alleges that Seider was ineffective because he did not object to the court's refusal to consider the entire range of applicable punishment before sentencing. In light of his two prior convictions, the punishment range to which he was subject was from twenty-five to ninety-nine years or life imprisonment. See TEX. PEN. CODE § 12.42(d) (Vernon 1999). Fannin claims that the judge merely used the prosecution's final plea offer of forty-five years confinement as a measuring stick for the fifty years imposed .
Seider observes in his affidavit that, he could have objected to the prosecution's publication of the final forty-five year plea offer to the trial judge, but that, in light of the original plea offer's sixty year term, as well as the fact that the judge likely had a copy thereof, he chose not to do so. See Respondent's Answer Exhibit B at pg. 2.
Petitioner's opinion as to how the court determined his sentence is a matter of pure speculation on his part and is without any evidentiary support or corroboration in the record. Under such circumstances he can show no prejudice based upon his attorney's decision not to object to the prosecutor's publication of the State's final plea offer. See Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993); see also Cockrum v. Johnson, 119 F.3d 297, 307 (5th Cir. 1997).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus should be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.