Opinion
No. 3:03-CV-1256-K.
January 6, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"). Respondent Douglas Dretke is Director of the TDCJ-CID. III. PROCEDURAL BACKGROUND
On April 22, 1999, Petitioner was found guilty of possession with intent to deliver cocaine, weighing more than four grams and less than 200 grams. State of Texas v. Donald Ray Gipson, No. F-9300133-W (2nd Crim. Dist. Ct., Dallas County, Tex., April 22, 1999). Petitioner was sentenced to fifty years confinement.
On May 24, 2001, the Eleventh Court of Appeals affirmed the conviction. Gipson v. State, No. 11-99-00130-CR (Tex.App. — Eastland, 2001, pet. ref'd). The Court of Criminal Appeals denied Petitioner's petition for discretionary review on November 21, 2001. Gipson v. State, PDR No. 01-1120.
On January 9, 2003, Petitioner filed a state petition for habeas corpus. Ex parte Gipson, Application No. 55,415-01. On April 30, 2003, the Court of Criminal Appeals denied the application without written order on the findings of the trial court. Id. at cover.
On May 28, 2003, Petitioner filed this petition. He argues his conviction is unlawful because he received ineffective assistance of counsel.
IV. FACTUAL BACKGROUND
The following factual background is taken from the Eleventh Court of Appeals decision.
Dallas Police Officer Troy Klingesmith testified that, while he was standing in a public alley investigating a residence as "a possible drug house," he observed a female approach a "Mr. Jones" in the front yard. Jones asked the female what she wanted, and the female responded, "[A]rock." Officer Klingesmith testified that "rock" was the common street name for crack cocaine. Officer Klingesmith heard a door open and saw appellant reach up and untwist the light bulb on the outside of the house. The officer heard Jones ask appellant if he had "the stuff on [him]." Appellant answered, "Yes," and Jones told him "to bring it up front" because "they [had] a customer on the front porch." Appellant moved out of Officer Klingesmith's sight by way of a side door. Officer Klingesmith remained where he was and kept in contact by radio with another officer who was at the location.
Dallas Police Officer Darrell Coslin testified that he was in communication with Officer Klingesmith at the residence. Officer Coslin saw the female walk away from the house and saw Jones and appellant walk across the street and get into a parked vehicle. Officer Coslin and Dallas Police Officer Marshal McLemore approached the vehicle on the passenger side while a Dallas Police Department squad car parked behind his vehicle. Officers Klingesmith and Coslin testified that appellant was sitting in the passenger seat and that they saw him place a sandwich bag in his mouth. Officer Klingesmith approached the vehicle at this time. The officers testified that appellant would not speak, open his mouth, or voluntarily get out of his car. Appellant was placed in a "lateral vascular neck restraint" to prevent him from swallowing the sandwich bag. When appellant did not spit out the sandwich bag, pepper mace was then sprayed in appellant's face. Appellant opened his mouth, and Officer Klingesmith "dug" the sandwich bag out of appellant's mouth with a pen.
The sandwich bag retrieved from appellant's mouth contained 21 individual bags of crack cocaine. The total weight of the off-white substance in the 21 individual bags was 4.44 grams. The record reflects that this amount of crack cocaine packaged in individual bags would be approximately "44 uses" and that it was not consistent with the normal amount drug users carry for their personal use.Gipson v. State, No. 11-99-00130-CR (Tex.App.-Eastland, 2001, pet. ref'd).
V. DISCUSSION
1. Standard of review
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254 provide:
(d) An application for 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. § 2254(d). 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, 380-84 (2000). Under 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.
This amendment applies to all federal habeas corpus petitions which are adjudicated on the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049 (1997). The petition in this case is subject to review under the AEDPA.
2. Ineffective Assistance of Counsel
Petitioner claims his counsel was ineffective because counsel: (1) failed to challenge the prosecution in a meaningful way; (2) failed to adhere to a duty of loyalty to his client; (3) failed to effectively cross-examine and impeach witnesses; (4) failed to investigate the facts and circumstances of the case; and (5) failed to obtain DNA testing.
(A) Procedural Bar
Petitioner failed to raise claims 1, 2 and 3 in his state habeas application or on direct appeal. The Court therefore finds these claims are procedurally barred.
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows cause for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. Id.
In this case, Petitioner's claims that his counsel failed to challenge the prosecution in a meaningful way, failed to adhere to a duty of loyalty, and failed to effectively cross-examine and impeach witnesses are procedurally barred for failure to present them to the Texas Court of Criminal Appeals either in a petition for discretionary review or a state writ. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claims procedurally barred. Id.
Petitioner has not presented these claims to the Texas Court of Criminal Appeals. If this Court required him to do so, the claims would be subject to dismissal under the Texas abuse-of-the-writ doctrine. Tex. Code Crim. Pro. Ann. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). "[A]rticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and . . . has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law. . . ." Id. (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524. Petitioner has shown no cause for his failure to present these claims to the Texas Court of Criminal Appeals.
Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. This exception is "confined to cases of actual innocence, 'where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). To establish the required probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has presented no new, reliable evidence showing that it was more likely than not that no reasonable juror would have convicted him. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on claims 1, 2 and 3.
(B) Other Ineffective Assistance of Counsel Claims
To sustain a claim of ineffective assistance of counsel, Petitioner must meet the standards of Strickland v. Washington, 466 U.S. 668 (1984), which requires proof that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial. Id. at 687. In Strickland, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such prejudice, Petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). "[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id. "Rather, the defendant must demonstrate that the prejudice rendered sentencing 'fundamentally unfair or unreliable.'" Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
(i) failure to investigate
Petitioner argues his counsel was ineffective because he failed to "investigat[e] the facts and circumstances of the case." (Pet. p. 7). To establish that counsel was ineffective for failure to investigate, the petitioner must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).
In this case, Petitioner provides no information regarding what type of investigation his counsel should have performed, or what that investigation would have revealed. Petitioner's conclusory allegations of ineffective assistance of counsel 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). Petitioner's claim is without merit and should be denied.
(ii) DNA testing
Petitioner argues his counsel was ineffective for failing to obtain DNA testing. Petitioner states only that his counsel "denied Petitioner line of defense by failing to get DNA testing for saliva." (Pet. p. 7). It appears Petitioner is arguing his counsel should have tested the baggie of cocaine that police removed from his mouth to determine whether his DNA was on the baggie. Petitioner has submitted no evidence that DNA testing would have been favorable to his defense. Further, in Petitioner's state writ, he admitted that police officers "forced open Applicant's mouth and dug out with a pencil a plastic bag containing 21 individual "rock" (sic) of cocaine." ( Ex parte Gipson, Application No. 55,415-01, p. 8). Counsel is not required to file frivolous motions. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Petitioner's conclusory allegations of ineffective assistance of counsel fail to raise a colorable basis for habeas corpus relief. See Ross, 694 F.2d at 1012.
Petitioner has not shown that the state court's denial of habeas relief is contrary to, or involved and unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Accordingly, the petition should be denied.