Opinion
No. 3:04-CV-314-D.
August 30, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has been previously referred to the undersigned 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 Scotty Harrison ("Harrison" or "Petitioner") is an inmate confined at the Allred Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Iowa Park, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Petitioner was indicted for aggravated sexual assault, which charge was later reduced on the State's motion to sexual assault in cause number F00-71949-JT. Petitioner plead not guilty and a jury found him guilty, found the enhancement paragraphs true, and sentenced Harrison to life imprisonment.
In light of the jury's determination that Harrison had previously been convicted of sexual assault as alleged in the third paragraph of the indictment under Tex. Pen. Code § 22.011, he was sentenced to a mandatory sentence of life imprisonment. See Tex. Pen. Code § 12.42(c)(2)(A)(i) and (B)(ii).
The Tenth Court of Appeals affirmed Petitioner's conviction on November 20, 2002. Harrison v. State, No. 10-02-064-CR (Tex.App.-Waco Nov. 20, 2002, no pet.) (not selected for publication). Harrison did not file a petition for discretionary review.
Petitioner filed an application for habeas corpus relief pursuant to Tex. Code Crim. Proc. art. 11.07 which was denied without written order on the findings of the trial court without a hearing on February 4, 2004. Ex Parte Harrison, No. 57,647-01.
In response to this court's order to show cause, Respondent filed an answer on May 3, 2004, along with a copy of Harrison's state court records. Petitioner filed a response to Respondent's answer on May 14, 2004 and a request to expand the record on May 18, 2004.
Findings and Conclusions:
Review of Petitioner's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an 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." § 2254(d)(1) (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
In his first ground for relief, Petitioner asserts that his trial attorney provided ineffective assistance of counsel. An attorney's conduct is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id. at 694, 104 S.Ct. at 2068.
Harrison specifically complains that his trial attorney failed to secure the testimony of Tony West at trial, did not object to an improper amendment of the indictment, and failed to call character witnesses to testify at the punishment phase of trial.
Petitioner contends that had Tony West been called as a witness he would have presented evidence that the victim had consensual sexual intercourse with Petitioner and West that resulted in her injuries. In addressing this claim Respondent argues that Harrison failed to provide the state habeas court with any competent evidence to show that West would have testified and the substance of his testimony. He also notes that Harrison cannot present evidence in his § 2254 petition which was not presented to the Texas state courts. See Respondent's Answer at page 7 and note 2. Harrison has advanced at least a colorable argument under § 2254(b)(1)(B)(ii) that he has been prevented from corresponding with Mr. West, who is also currently incarcerated in the Texas prison system. However, notwithstanding the exhaustion requirement under § 2254(b)(1)(A); (b)(2) permits a federal court to deny relief even if state remedies have not been exhausted.
See Exhs. 5(a), 5(b), 5(c), and 13, attached to his petition. However, Harrison does not explain why he delayed seeking to correspond with West until October 13, 2003, some ten months after his conviction became final and one month after he filed his state habeas application.
As noted above Strickland recognizes a strong presumption of attorney competence which can only be rebutted by a showing of both "cause" and "prejudice." Further the AEDPA requires that a habeas petitioner satisfy either § 2254(d)(1) or (2). See Yarborough v. Gentry, 540 U.S. 1, 4, 124 S.Ct. 1, 4 (2003).
The record demonstrates that Harrison cannot satisfy the "cause" prong of the Strickland test, nor the requirements imposed under § 2254(d).
It was undisputed that Harrison had had consensual sex with the victim prior to the date of the sexual assault on July 17, 2000. On cross-examination she denied that she engaged in consensual sex with Petitioner and Tony West on the night in question. In an effort to undermine the victim's credibility generally and specifically with respect to the events on July 17, 2000, the defense presented the testimony of Darlene Renee Waddle who stated that the victim was obsessed with Harrison and got angry with Waddle after learning that she was living with Harrison and thereafter refused to speak to Waddle. The defense also presented Patricia Herron as a witness who testified that the victim had told her that she sustained a severe back injury while engaged in three way intercourse with Harrison and another man.
The volume and page numbers of the witnesses' testimony is set out in the direct appeal briefs.
It is clear that the testimony of Tony West — assuming it would have been consistent with the representations Harrison has stated in his habeas proceedings — would have been cumulative of the admissions which the victim allegedly made to Ms. Herron. It is equally clear that as a matter of strategy counsel may well have determined that in light of the credibility issues at play it would not have advanced the defense to have presented the testimony of a person then confined at the Dallas County Jail.
Petitioner alleges that he was prejudiced by his attorney's failure to object to the indictment because the jury saw an incorrect prior conviction of sexual assault of a child. However, the jury was not apprised of the contents of the enhancement paragraphs of the indictment until after they had found him guilty of the offense. See Reporter's Record v. 5 at 23-24. Since the jury found that Petitioner had been previously convicted of a felony under Tex. Pen. Code § 22.011, a sentence of life imprisonment was mandatory. Since § 22.011 proscribes both a sexual assault as alleged in the third paragraph of the indictment, as amended, and sexual assault of a child, as alleged in the indictment prior to amendment, Harrison can show no "prejudice." See note 1, supra.
Finally Petitioner alleges that his trial attorney was ineffective in failing to call character witnesses at the punishment phase of trial. Harrison testified in open court that he agreed with the decision not to call character witnesses. Reporter's Record v.5 at 51. Further, because a life sentence was mandatory as a result of the jury's finding that he had a prior conviction for sexual assault, he can show no prejudice in the failure to call character witnesses.
In his second ground for relief he claims that his appellate attorney rendered ineffective assistance of counsel in failing to assert a point of error asserting that the evidence was insufficient to support the jury's finding that he had previously been convicted of the sexual assault charge in No. F84-86016-UI, as alleged in the third paragraph of the indictment.
During the punishment phase the prosecution proffered State's Exhibits 4, 5, 6, and 7 as evidence of Harrison's prior convictions. See Reporter's Record, v.5 at 25-39; see also v.6. Exhibit 4 included a photograph and fingerprints of the person convicted as did Exhibit 5. Exhibits 6 and 7 included fingerprints only. A fingerprint expert testified that Harrison's fingerprints appeared on these Exhibits.
Petitioner's counsel objected to the admission of Exhibit 5 which was sustained by the court, Id. at 34-35, which excluded the accompanying fingerprints of the person convicted. See also State Exh. 5-A in v.6. The prosecution then offered State's Exhibits 8 and 9, which were admitted. Exhibit 8 included a copy of a photograph of the person convicted of a sexual assault in No. F84-86016-UI. The prosecution elicited testimony from its witness that the photograph depicted in State's Exhibit 8 was Harrison.
Under facts remarkably similar to those reflected in Harrison's criminal trial the Texas Court of Criminal Appeals upheld the propriety of this method of proving a prior criminal conviction. See Littles v. State, 726 S.W.2d 26, 27-28 (Tex.Crim.App. 1987) ( en banc). Upon initial review the court found that photographs of the previously convicted person without more were insufficient to prove that the defendant had committed the prior offense. Id. at 29. However, on rehearing by the court en banc the court held that the evidence was sufficient to support the jury's finding. Id. at 32. Therefore, any attack on the sufficiency of the evidence to prove that Petitioner had been convicted of the offense of sexual assault in No. F84-86016-UI would have been futile in light of established state law and Harrison can show no prejudice due to appellate counsel's decision not to present such a ground in his direct appeal.
RECOMMENDATION:
For the foregoing reasons Harrison has failed to satisfy the requirements of either § 2254(d)(1) or (2), and it is therefore recommended that the petition be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.