Opinion
No. 3:01-CV-1681-G
December 18, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE TUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the Court in implementation thereof, subject cause has previously 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 in which he challenges a conviction for assault on a public servant (Cause No. F98-46171-M).
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 March 31, 1998, the State indicted petitioner for an assault on a public servant that occurred on or about March 27, 1998. TR at 2. The indictment set forth two enhancement paragraphs to increase petitioner's punishment for being a habitual offender. Id. at 4. The first enhancement paragraph alleged that petitioner was convicted of unauthorized use of a motor vehicle (UUMV) in Cause No. F83-94478-LU on March 26, 1984. Id. The second enhancement paragraph alleged that petitioner was convicted of burglary of a vehicle in Cause No. F82-88035-QT on December 27, 1982. Id.
"TR" refers to the state trial record in Cause No. F98-46171-SM.
Under Texas law, the penalties for a given offense increase to twenty-five to ninety-nine years imprisonment when "the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final." See TEX. PENAL CODE ANN. § 12.42(d) (Vernon 1997).
The jury convicted petitioner of assault on a public servant in Cause No. F98-46171-M on March 9, 1999. See Reporter's Record, Vol. III at 134 [hereinafter cited as RR-volume # at page]. It also found the two enhancement paragraphs true. See RR-V at 19. On March 11, 1999, petitioner was sentenced to ninety-nine years imprisonment for the conviction currently under attack, enhanced by the two prior felony convictions. See RR-IV at 19-20.
He was also convicted of two charges not at issue here.
On April 7, 2000, the court of appeals affirmed petitioner's conviction for assault on a public servant. See Franklin v. State, Nos. 05-99-00515-CR, 05-99-00516-CR, 05-99-00517-CR, 2000 WL 356346, at * 1 (Tex.App.-Dallas Apr. 7, 2000, no pet.) (not designated for publication). On April 5, 2001, petitioner filed a state application for writ of habeas corpus. See S.H. Tr. at 7. The Texas Court of Criminal Appeals denied the application on July 25, 2001 without written order on findings of trial court without a hearing. Ex parte Franklin, No. 49,852-01, slip op. (Tex.Crim.App. July 25, 2001).
"S.H. Tr." denotes the state habeas records attached to Ex parte Franklin, No. 49,852-01, slip op. (Tex.Crim.App. July 25, 2001).
Petitioner filed the instant federal writ of habeas corpus on August 22, 2001. ( See Pet. at 9.) Respondent filed an answer on December 10, 2001. ( See Answer at 1.) In August 2002, petitioner filed a written response and objections to the answer. ( See Petitioner's Written Response Objections, hereinafter referred to as Reply Brief.)
D. Substantive Issues : In three grounds for relief, petitioner asserts two claims of ineffective assistance of counsel. ( See Pet. at 7.) He specifically claims that his attorney rendered ineffective assistance when she failed (A) to investigate the two prior convictions that were used to enhance his sentence; and (B) to investigate and pursue an insanity defense. (Id.)
Petitioner listed these claims of ineffective assistance separately, but the Court has combined them because the claims are related.
E. Exhaustion : Respondent concedes that petitioner has exhausted his state remedies for the claims raised in the instant petition. ( See Answer at 3.)
II. APPLICABLE LAW
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. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
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 unrea sonable 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 deter mination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Petitioner argues, unpersuasively, that the denial does not constitute an adjudication on the merits. The Court notes, however, that the end result is the same even if the AEDPA standards are not applied.
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 41243 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if 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." 529 U.S. at 407. "[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that his attorney rendered ineffective assistance when he failed to (A) investigate his prior convictions and (B) failed to investigate or pursue an insanity defense. ( See Pet. at 7.) To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
In determining whether a petitioner established that counsel's performance was constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
In determining whether a petitioner established prejudice, courts consider whether the petitioner has shown that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. Furthermore, petitioners must "affirmatively prove prejudice." Id. at 693. They cannot satisfy the second prong of Strickland with mere speculation and conjecture, Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992), and conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. 466 U.S. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000). A. Failure to Investigate Enhancement Convictions
Petitioner argues that counsel rendered ineffective assistance by failing to properly investigate his prior convictions for unauthorized use of a motor vehicle (Cause No. F83-94478-LU) and burglary of a vehicle (Cause No. F82-88035-QT). ( See Pet. at 7.) He claims that ineffective assistance of counsel on those convictions renders them void, and thus unuseable for enhancement purposes. (Id.) Specifically, he asserts that his attorneys' lack of investigation in his previous convictions caused him to plead guilty instead of going to trial. ( See Mem. at 3 and 6, attached to State Writ attached to Pet.) Strickland requires counsel to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 691.
In this case, the trial court secured an affidavit from trial counsel before considering the state writ. S.H. Tr. at 31. With respect to the claimed failure to investigate petitioner's prior convictions, counsel averred:
I discussed [petitioner's] prior convictions with him before trial commenced. [Petitioner] did bring up the claim of ineffective assistance in his prior cases, however, there was no indication that the convictions were not final, as required by law. The pen packs appeared to be valid on their face, and were admitted, after defense objections were overruled.Id. at 35-36. The trial court found counsel "trustworthy" and the statements in her affidavit "worthy of belief." Id. at 31. Such credibility finding is presumed correct unless petitioner rebuts it with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Petitioner has not shown clear and convincing evidence that overcomes the presumption of correctness. This Court thus defers to that credibility finding.
From the affidavit of counsel, it appears that counsel examined the relevant penitentiary packets and asserted objections which she deemed appropriate. Through such examination, counsel would have seen that petitioner was found guilty through a bench trial in Cause No. F82-88035-QT and a jury trial in Cause No. F83-94478-LU. See RR-VI, State's Ex. 15 (penitentiary packet for Cause No. F82-88035-QT, including Judgment from bench trial) and State's Ex. 16 (penitentiary packet for Cause No. F83-94478-LU, including Judgment from jury trial). The state records of the prior convictions thus do not support finding the convictions void for the alleged ineffective assistance of counsel.
Counsel had ample reason to decide that an investigation of petitioner's prior convictions was unnecessary. Under the circumstances of this case, the decision not to further investigate petitioner's prior convictions appears entirely reasonable. Petitioner has not overcome the strong presumption that counsel's conduct falls within the wide range of reasonable assistance. In light of petitioner's allegations of ineffective assistance during his prior convictions, i.e. causing him to plead guilty rather than proceed to trial, the admitted pen packets provide more than sufficient reason to forego further investigations of the enhancement convictions. The pen packets clearly show that petitioner did not plead guilty to either of the enhancement convictions.
Petitioner has also shown no prejudice from the alleged failure to investigate. He has shown nothing that would have resulted in the voiding of the prior convictions. He has not shown that further investigation of the enhancement paragraphs would have created a reasonable probability that the outcome would have been different. Petitioner has not affirmatively shown prejudice. He presents nothing to undermine confidence in the verdict or sentence.
Furthermore, when prior convictions are collaterally attacked, the judgments reflecting those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption. Sones v. Hargett, 61 F.3d 410, 421 n. 19 (5th Cir. 1995) (citing Parke v. Raley, 506 U.S. 20, 29 (1992)). Petitioner has not overcome the presumption of regularity that attends final judgments. The copies of the final judgments clearly reflect that petitioner had two prior felony convictions. No facial impropriety appears from the use of the prior convictions to enhance the sentence currently under attack. At least implicitly, the Texas Court of Criminal Appeals found the prior convictions to be valid and thus sufficient to enhance petitioner's sentences. In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. See Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).
For all of these reasons, petitioner is entitled to no habeas relief on his claim that his trial counsel rendered ineffective assistance by failing to investigate the enhancement convictions.
B. Failure to Investigate and Pursue Insanity Defense
Petitioner also contends that his attorney rendered ineffective assistance when she failed to investigate and pursue an insanity defense. (Pet. at 7.) He claims that his attorney knew that he had been prescribed anti-psychotic medications prior to trial. ( Id.) He claims that, had counsel raised the insanity defense prior to trial, there would have been a reasonable probability that the jury would have found him not guilty by reason of insanity. (Mem. at 10-11.)
In Texas, "[i]t is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." TEX. PEN. CODE § 8.01(a) (Vernon 1994) (providing for affirmative defense of insanity); accord, Macri v. State, 12 S.W.3d 505, 509-10 (Tex.App.-San Antonio, 1999, pet. ref'd). Whomever raises the defense has the burden to show by a preponderance of evidence that he or she is insane. Manning v. State, 730 S.W.2d 744, 746 (Tex.Cr.App. 1987).
Whether to raise such a defense "is a matter of trial strategy" that" [b]y its nature . . . involves case by case determinations of fact and will often fail even if raised and even where some indications of irrationality exist." McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir. 1990). Courts evaluate
whether counsel for mentally suspect defendants erred in failing to investigate or pursue a defense of insanity or incompetency to stand trial by appraising the facts known and available or with minimal diligence accessible to defense counsel and determining whether those facts raise reasonable doubt as to the defendant's mental condition. In many cases, of course, trial tactics could dictate an attorney's decision not to rely upon or advance an insanity defense. Courts hesitate to fault such decisions by facile hindsight, because opinions could readily differ between lawyers and judges as to the proper strategic course to follow in varying circumstances.United States v. Edwards, 488 F.2d 1154, 1164 (5th Cir. 1974).
In this instance, the record reflects that counsel considered and rejected pursuing an insanity defense. See S.H. Tr. at 36 (affidavit of counsel). Counsel averred that she was aware of petitioner's "psychiatric past", and thus discussed with the court-appointed doctor "the possibility of insanity at time of the offense, or some other form of diminished capacity, based mostly on post-traumatic stress disorder." Id. From the doctor's examination and her own observations, counsel concluded that "an insanity defense was not raised by the evidence." Id. As stated previously, the trial court found counsel credible, and this Court defers to that credibility finding.
From the affidavit of counsel, it appears that the attorney made a reasoned decision not to pursue the insanity defense. Petitioner merely argues that counsel should have pursued such defense because the attorney knew that he had been prescribed anti-psychotic medications. (Mem. at 9.) Such knowledge does not necessitate pursuit of an insanity defense. By discussing the possibility of using the insanity defense with the court-appointed doctor, and thereafter concluding that such defense was unwarranted by the evidence, counsel pursued reasonable investigation into the matter and made a reasonable decision that further investigation was not necessary. Petitioner has not overcome the strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Under the facts of this case, there appears to be no deficiency of counsel with respect to further pursuit of an insanity defense.
In his reply brief, petitioner argues that counsel's affidavit "is problematic as it does not provide a sufficient amount of facts as to how the expert's examination was not sufficient to satisfy Texas law regarding an insanity defense" or how the attorney's personal observations qualified as an expert medical opinion regarding the insanity defense. (Reply Brief at 5.) Although this argument points out some deficiencies of counsel's affidavit, it does not overcome the presumption that counsel's conduct falls within the wide range of reasonable assistance. Under all the circumstances, and in consideration of the deficiencies of counsel's affidavit, counsel's decision not to further investigate or pursue the insanity defense appears reasonable.
Moreover, even if the Court were to find counsel deficient in failing to further investigate and pursue the insanity defense, the claim would fail for the failure of petitioner to show prejudice. Petitioner has shown nothing that creates a reasonable probability that the outcome of his trial would have differed had counsel pursued such defense. Petitioner must affirmatively show prejudice. Failures to investigate and pursue an insanity defense prejudice a defendant "only if the failures "stopped [petitioner] from presenting a meritorious defense of insanity." United States v. Pofahl, 990 F.2d 1456, 1472-73 (5th Cir. 1993). Petitioner has presented nothing to show that he could have presented an insanity defense sufficient to create a reasonable probability that the outcome of his trial would have differed. He has presented nothing to show that he had a severe mental disease or defect at the time of the offense which made it so that he did not know that his conduct was wrong. The arguments in his reply brief ignore the fact that he has the burden to show that he was prejudiced by his attorney's failure to pursue the insanity defense. He cannot rely on deficiencies or omissions in the affidavit to establish prejudice.
In short, petitioner has not shown prejudice from the alleged deficiencies of counsel. He presents nothing to undermine confidence in the verdict or sentence. Accordingly, petitioner is not entitled to habeas relief on this claim.
IV. STATE CONSIDERATION OF CLAIMS
Petitioner raised both of his ineffective-assistance claims in his state writ. The Texas Court of Criminal Appeals denied that writ and thus adjudicated the claims on the merits. The decision of the state court with respect to petitioner's ineffective-assistance claims is consistent with Strickland, the applicable Supreme Court precedent. The decision involved no unreasonable application of Supreme Court precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court.
Not only does it appear that counsel rendered non-deficient representation, petitioner presents nothing to undermine confidence in his conviction. He has demonstrated no reasonable probability that the outcome of trial or sentencing would have differed in the absence of the alleged deficiencies of counsel. He presents nothing that indicates the result of his trial is unreliable or that the proceeding was fundamentally unfair. Under applicable Supreme Court standards and the AEDPA standards, petitioner is entitled to no habeas relief on the claims raised in the instant petition.
V. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
VI. RECOMMENDATION
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.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBTECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).