Opinion
Civil Action No. 9:05CV203.
March 1, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Imari Askari Mujihad Islam, a prisoner confined in the Texas prison system, brings, pursuant to 28 U.S.C. § 2254, this petition for a writ of habeas corpus challenging his conviction. The petition was referred for findings of fact, conclusions of law, and recommendations for disposition of the case.
Procedural Background
The state appellate court summarized the procedural background of the case as follows:
[Appellant Imari Askari Mujihad Islam] was indicted on two charges: possession of more than four ounces but less than five pounds of marijuana, Tex. Health Safety Code Ann. § 481.121(b)(3) (Vernon 2002), and possession of over 400 grams of cocaine with an intent to deliver, Tex. Health Safety Code Ann. § 481.112(a), (f) (Vernon 2002). Islam v. State, 2003 WL 21771752 at 3 (Tex.App.-Tyler Jul. 31, 2003).
Both charges were tried together. Id. at 1.
Although Appellant filed and urged a motion to suppress the search of his person, he agreed that he consented to that search. At trial, Appellant did not contest the search and seizure of the marijuana nor did he contest the search and seizure of the cocaine which was found under Eskridge's control after [Officer] Cruse received her permission to search her person and plastic bags. At the conclusion of the trial, Appellant made a motion for directed verdict as to the cocaine charge, which was denied. Id. at 3.
[Appellant] was convicted after a trial by jury of possession of a controlled substance with intent to deliver and possession of marijuana. . . . The trial court sentenced Appellant to twenty-five years of imprisonment in the Texas Department of Corrections-Institutional Division for possession of a controlled substance with intent to deliver, and two years of confinement in a state jail facility for possession of marijuana. Id. at 1.
Petitioner was sentenced on August 14, 2000. The conviction was affirmed on appeal on July 31, 2003. Id.
The Texas Court of Criminal Appeals denied his petition for discretionary review on December 5, 2003. Petitioner filed a state petition for writ of habeas corpus on January 21, 2004, and the petition was denied on November 17, 2004. Ex parte Islam, Application No. 50,419-04. He challenges the sufficiency of the evidence and claims that he was denied of effective assistance of counsel.
Factual Background
The state appellate court summarized the factual background of the case as follows:
At 1:00 a.m. on September 18, 1998, Appellant got on a bus leaving Houston, Texas, bound for Memphis, Tennessee. The bus stopped in Nacogdoches, where Henri Cruse ("Cruse"), a member of the Deep East Texas Narcotics Task Force, in the course of his duties as a drug interdiction officer, got on the bus, and worked his way from the back of the bus toward the front. Cruse talked with passengers at random, including Appellant. Cruse looked for several criteria, including not having any identification, and not having personal items such as a toothbrush or a change of clothing for a person taking an extended trip, which could raise his suspicions and would lead to further questioning. Based on his training, such criteria and responses, when taken together, could suggest criminal activity. Cruse explained that, through his questioning, he gathered information from which he would decide whether to ask permission to search the questioned passenger or move on to the next passenger. Cruse admitted that, standing alone, the answers to those questions did not give him probable cause to search. He identified Houston as a "hub" from which drugs are dispersed along bus routes to avoid traffic stops.
Cruse testified that he had spoken to several other passengers on the bus before he got to Appellant. When Cruse identified himself as a police officer and asked Appellant for identification and his bus ticket, Appellant became very nervous, his voice trembling and his hand shaking. After learning that the ticket had been paid for with cash, Cruse asked permission to search Appellant and his bags, and Appellant said "go ahead." When he patted down Appellant, he found a large round package in his pocket, a gray-duct-tape-wrapped package containing 210.6 grams (7.41 ounces) of marijuana. Cruse arrested Appellant, and began to drive Appellant to the Nacogdoches Sheriff's Office for booking in. Cruse was contacted by the sheriff's office and told to return to the bus station because Appellant had the ticket of a woman who was still on the bus and trying to continue on to Memphis. Cruse asked Appellant where his ticket was, and Appellant indicated in his pocket. Cruse searched Appellant's pocket and retrieved two sequentially numbered tickets that Appellant had purchased with cash. When Cruse got back to the bus station, he boarded the bus and approached the woman, Charlotte Eskridge ("Eskridge"), whom the bus driver identified as the woman who needed her bus ticket. When Cruse asked what the problem was, Eskridge, who had been sitting two rows behind Appellant on the bus, explained that Appellant had her bus ticket.
Cruse was suspicious of Eskridge because Appellant had her ticket. As they talked, Cruse noticed that Eskridge was sweating despite the fact that it was 4:00 a.m. and cool. Cruse asked if he could search her bags. Eskridge consented and pointed to a Wal-Mart plastic bag in the luggage compartment above her. Inside the bag was a gray-duct-tape-wrapped package, like the one found in Appellant's pocket. Eskridge then pointed to another similar bag next to the first one. After getting permission to examine that package, Cruse found another gray-duct-tape-wrapped package. The packages contained a total of 987.65 grams of eighty-two percent pure cocaine. Cruse testified that cocaine in that quantity was in excess of what someone would possess for his own use, but would be consistent with possession for distribution. Cruse arrested Appellant and Eskridge for possession of the cocaine. Cruse testified that Appellant had no personal possessions, but had forty dollars and a credit card with him. Eskridge had no personal possessions, other than the packages containing the cocaine. She had no money, credit card, or checkbook. Cruse explained that Eskridge's role was as a "mule," to carry someone else's drugs. Cruse further explained that a mule, because she is traveling without any money, is in the total control of the manager. Cruse explained that without any money, the mule cannot get off the bus and leave with the drugs because she cannot buy anything, including another ticket to another destination, or effectuate a departure from the managing person. And, since the drugs are in the hands of the mule, if the mule is arrested, the managing person can possibly escape detection. Significantly, Cruse testified that Eskridge told him the cocaine belonged to Appellant.Islam v. State, 2003 WL 21771752 at 1-2.
Standards and Discussion
Title 28 U.S.C. § 2254(d) dictates a highly deferential standard for evaluating state-court rulings. Bell v. Cone, 535 U.S. 685 (2005). State courts are presumed to know and follow the law. Id. State court factual findings are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear, convincing evidence. Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005), pet. for cert. filed Oct. 7, 2005; 28 U.S.C. § 2254(e)(1). Because 28 U.S.C. § 2254(d) dictates a highly deferential standard for evaluating state-court rulings, state court decisions must be given the benefit of the doubt. Bell, 535 U.S. 685.
The Texas Court of Criminal Appeals already has denied Petitioner's claims; consequently, Petitioner cannot obtain federal habeas corpus relief unless he can show that the state court's adjudication of those claims either resulted in a decision that was contrary to established federal law ( see Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002), cert. denied 537 U.S. 953; 28 U.S.C. § 2254(d)(1)) or resulted in a decision based on an unreasonable determination of the facts ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(2)). The unreasonable application clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Brown v. Payton, 125 S. Ct. 1432, 1442 (2005). The habeas petitioner has the burden of showing that the state court applied the law to the facts of his case in an objectively unreasonable manner. Woodford v. Visciotti, 537 U.S. 19, 25 and 27 (2003); see also, Price v. Vincent, 538 U.S. 634, 641 (2003).
A petitioner seeking habeas relief pursuant to 28 U.S.C. § 2254 must plead facts in support of his claims. Rule 2(c). Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition, in state and federal court, unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value. Joseph v. Butler, 838 F.2d 786, 788 (5th Cir. 1988); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (cited in Murphy, 416 F.3d at 437).
Ineffective Assistance of Counsel
A petitioner who seeks to overturn his conviction on the grounds of ineffective assistance of counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56 F.3d 662, 667 (5th Cir. 1995). Ineffective assistance is deficient performance by counsel resulting in prejudice, with performance being measured against an objective standard of reasonableness, under prevailing professional norms. Rompilla v. Beard, 125 S. Ct. 2456, 2462 (2005).
To satisfy the first prong, the petitioner must (1) identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment ( Strickland v. Washington, 466 U.S. 668, 690 (1984)), and (2) show that counsel's representation fell below an objective standard of reasonableness ( Rompilla, 125 S. Ct. at 2462). Under the first prong of the ineffective assistance of counsel test, judicial scrutiny of a counsel's performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Bell, 535 U.S. at 698. Under the first prong of the ineffective assistance of counsel test, "hindsight is discounted by pegging adequacy to counsel's perspective at the time" decisions are made and by giving a heavy measure of deference to counsel's judgments. Rompilla, 125 S. Ct. at 2462. Under the first prong of the ineffective assistance of counsel test, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance; in making that determination, the court keeps in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. Strickland, 466 U.S. at 690. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bell, 535 U.S. at 698; Guy v. Cockrell, 343 F.3d 348, 352 (5th Cir. 2003); Riley v. Cockrell, 215 F. Supp. 2d 765, 777 (E.D. Tex. 2002), aff'd 362 F.3d 302 (5th Cir. 2004), cert. denied 543 U.S. 1056 (2005).
To satisfy the second prong of the ineffective assistance of counsel test, a state prisoner seeking federal habeas corpus relief must show that his attorney's deficient performance prejudiced the petitioner to the point that he was denied a fair trial ( Id. at 687; Leal v. Dretke, 428 F.3d 543, (5th Cir. 2005)) and that, but for counsel's unprofessional errors, the result of the proceeding would have been different ( Williams v. Taylor, 529 U.S. 362, 391 (2000); Brown v. Dretke, 419 F.3d 365, 374 (5th Cir. 2005)).
Petitioner bases his ineffective assistance of counsel claims on several theories related to counsel's failure to (1) challenge or defend against introduction of the illegally seized marijuana, and (2) object to admission of the cocaine. He contends that counsel was ineffective for failing to challenge admission of the marijuana because (1) counsel failed to file a motion to suppress evidence, even though Petitioner's consent to search was invalid because he did not know that he had a right to refuse to consent, (2) counsel did not allow Petitioner to testify that the consent to search was invalid because he did not know that he had a right to refuse to consent, (3) counsel did not interview witnesses who would have testified that the consent to search was invalid, (4) counsel did not object to introduction of the marijuana, and (5) counsel admitted to the jury that the evidence probably would show that Petitioner had the marijuana on him, and that after counsel had discussed this with Petitioner, they were not going to dispute that.
Determination of whether counsel's failure to file a suppression motion constitutes ineffectiveness depends on whether either a suppression motion or an objection would have been granted or sustained had it been made. United States v. Oakley, 827 F.2d 1023, 1025 (5th Cir. 1987). The state court records show that counsel did file and argue a motion to suppress the marijuana on the basis of the consent to search being invalid, and that his motion was overruled before the trial began. Tr. vol. 3 at 15-42.
Petitioner's first four ineffective assistance theories are based on his contention that the search was invalid. He offers no other basis on which counsel should have objected to introduction of the marijuana.
Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428 U.S. 465, 494 (1976). Consequently, the alleged invalidity of the search does not provide a theory for his ineffective assistance of counsel claim for federal habeas corpus relief.
Petitioner contends that counsel admitted to the jury that the evidence probably would show that he had the marijuana on him, and that after counsel had discussed this with him, they were not going to dispute that. Petitioner contends that counsel's affidavit submitted in the state habeas proceedings implies that he would concede possession if the marijuana was entered into evidence, but Petitioner contends that counsel conceded possession in his opening statement, before introduction of the marijuana.
Officer Cruse testified that he found marijuana on Petitioner. Tr. vol. 8 at 45. Counsel's affidavit in the state court habeas proceedings states the following:
After the suppression phase of the trial, which was conducted outside the presence of the jury, the marijuana Cruse found on Islam was admitted over my objection. When Cruse testified to the jury he took the marijuana off of Islam's person, it seemed futile to argue that Islam did not have care, custody and control of the marijuana.Ex parte Islam, WR-50,419-04 at 148. Petitioner has shown neither that counsel's position regarding the marijuana was not sound trial strategy nor that the state court's determination that counsel's performance was not deficient was either contrary to established federal law ( see Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002), cert. denied 537 U.S. 953; 28 U.S.C. § 2254(d)(1)) or based on an unreasonable determination of the facts ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(2)).
Assuming arguendo that counsel's position concerning the marijuana constituted deficient performance, Petitioner has not shown that but for that deficient performance, the result of the proceeding would have been different. See Williams, 529 U.S. at 391; Brown, 419 F.3d at 374. The record shows that the marijuana was found on him, and he points out no evidence to the contrary. Consequently, he has failed to establish the second prong to show entitlement to habeas corpus relief based on that theory of ineffective assistance of counsel.
Petitioner further contends that he received ineffective assistance of counsel because counsel failed to object to admission of the cocaine. Petitioner contends that counsel should have objected because the state did not prove that it had valid consent to search, because the only evidence was hearsay. For the reasons discussed previously, this Court will not review the validity of the consent to search.
Petitioner further contends that counsel should have objected because the state did not prove that the cocaine belonged to Petitioner, because the only evidence was hearsay. He contends that counsel had a duty to object to introduction of the cocaine because it was offered based on Officer Cruse's inadmissible hearsay testimony. Petitioner contends that part of Cruse's inadmissible hearsay testimony was statements made to him by co-defendant Eskridge.
A co-conspirator need not be unavailable for her out-of-court statements to be introduced through hearsay ( White v. Illinois, 502 U.S. 346, 354 (1992); United States v. Holmes, 406 F.3d 337, 347 (5th Cir. 2005), cert. denied 126 U.S. 375) because those statements fall under a hearsay exception ( Idaho v. Wright, 497 U.S. 805, 815 (1990)). Counsel has no obligation to make meritless objections. McCoy v. Lynaugh, 874 F.2d 954, 963 (5th Cir. 1989). Petitioner has not shown that counsel's failure to object to Officer Cruse's testimony about Eskridge's statements was not the result of reasonable professional judgment ( see Strickland, 466 U.S. at 690) and fell below an objective standard of reasonableness ( see Rompilla, 125 S. Ct. at 2462).
Petitioner contends that no evidence showed that he had actual care, custody, or control over the cocaine and that counsel should have objected because he allowed the state to establish this link to Petitioner through hearsay evidence and items not in evidence. He contends that the hearsay evidence was Cruse's testimony of Eskridge's statement, of a call from a sheriff's officer directing Cruse to go back to the bus station, and of the bus driver's statement that Petitioner had the ticket belonging to a lady still on the bus. He contends that no fingerprints were taken from the seized package of cocaine. As discussed previously, counsel was not required to object to the testimony as being hearsay.
In discussing Petitioner's sufficiency of the evidence claim, the Appellate Court said the following regarding the linking of Petitioner to the cocaine:
[T]he cocaine was reasonably accessible to Appellant. Appellant sat two seats directly in front of Eskridge. He could thereby prevent her from exiting the bus without his permission. The packages of cocaine were on the rack immediately above her seat on the bus and, therefore, just behind him on the rack. Appellant also had several special connections to the contraband. Both the marijuana found on Appellant and the cocaine were wrapped in similar gray duct tape. Appellant was holding the sequentially numbered bus tickets for himself and Eskridge, purchased with cash, and both in Appellant's name. Eskridge had no money or credit card. As Cruse explained, drug transporters were known to frequently use another person to actually carry the drugs, but maintain control over that person by depriving the person of any money and retaining the person's ticket. As a result, the person could not leave with the drugs, and remained subject to the direction of the drug transporter. The absolute control of Appellant over Eskridge was demonstrated when, after Appellant was arrested for possessing marijuana, Eskridge asked the bus driver to contact the police to bring her ticket to her because she would otherwise be stranded without any means to complete her trip back to Memphis. He also testified that neither Appellant nor Eskridge had any luggage or personal effects that one would expect a person traveling for several days to have. Appellant's reaction to Cruse is also a recognized affirmative link between Appellant and the drugs. Appellant was extremely nervous, his hand and his voice trembling. Finally, a very significant affirmative link from which the jury could reasonably connect Appellant and the cocaine was that Eskridge told Cruse the cocaine was Appellant's.Islam v. State, 2003 WL 21771752 at 3-4. The seized drugs constituted items admitted as evidence, and Cruse's testimony was admissible to establish the link between Petitioner and the cocaine. Petitioner's contention that counsel should have objected because "no evidence," and no items admitted into evidence, established a link between Petitioner and the cocaine lacks merit.
Petitioner also contends that counsel should have objected because the state did not establish a chain of custody of the cocaine, and thereby violated Texas Rules of Evidence 901(a). Counsel's failure to insist on proof of the chain of custody of incriminating evidence does not necessarily constitute ineffective assistance of counsel. Burston v. Caldwell, 506 F.2d 24, 31-32 (5th Cir. 1975), cert. denied 421 U.S. 990. A violation of a state procedural rule does not, in itself, constitute a ground for federal habeas relief. The Texas Court of Criminal Appeals already has denied Petitioner's ineffective assistance claims; consequently, he cannot obtain federal habeas corpus relief unless he can show that the state court's adjudication of those claims either resulted in a decision that was contrary to established federal law ( see Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002), cert. denied 537 U.S. 953; 28 U.S.C. § 2254(d)(1)) or resulted in a decision based on an unreasonable determination of the facts ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(2)). Petitioner has not made that showing.
Finally, Petitioner contends that counsel rendered ineffective assistance because he failed to obtain a ruling on his motions to discover reports of experts and consequently was unprepared to cross-examine Mr. Beene regarding the testing reliability of his laboratory report. Petitioner contends that the fact that the laboratory results included an initial report and a supplemental report proves that neither Mr. Beene nor the testing procedures he applied were beyond errors.
Assuming arguendo that counsel's failure to challenge the laboratory testing constituted deficient performance, Petitioner has not shown that but for that deficient performance, the result of the proceeding would have been different. See Williams, 529 U.S. at 391; Brown, 419 F.3d at 374. He has not shown that an error occurred in the testing and has neither contended nor shown that the substance seized was not cocaine. Mere conclusory allegations do not raise a constitutional issue in a habeas case. Collier v. Cockrell, 300 F.3d 577, 587 (5th Cir. 2002), cert. denied 537 U.S. 1084. He merely has suggested the possibility that an error may have occurred. He has not established prejudice by a preponderance of the evidence. He has not shown that the state court's adjudication of his ineffective assistance claims either resulted in a decision that was contrary to established federal law ( see Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002), cert. denied 537 U.S. 953; 28 U.S.C. § 2254(d)(1)) or resulted in a decision based on an unreasonable determination of the facts ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(2)).
Sufficiency of the Evidence
Petitioner contends that in reviewing his sufficiency of the evidence claim, the state court identified the correct governing legal principle but unreasonably applied that principal to the facts of his case. He contends that the state court did not view the evidence in the light most favorable to the verdict because the evidence presented to support the affirmative link from which the jury reasonably could connect him to the cocaine was based on the hearsay testimony of Officer Cruse, denial of the right to confrontation of witnesses, and items not in evidence.Respondent contends that Petitioner did not exhaust his sufficiency of the evidence claims. Respondent contends that Petitioner raised a sufficiency of the evidence claim in his petition for discretionary review, but that the claim was based on the theory that the evidence at trial was based solely on the inadmissible hearsay evidence of one witness. Petitioner filed a Reply stating that he raised the claim in his direct appeal at the Court of Appeals.
Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights. Baldwin v. Reese, 124 S. Ct. 1347, 1349 (2004); 28 U.S.C. § 2254(b)(1)(A). To satisfy the exhaustion requirement of 2254(b)(1), a habeas petitioner must have fairly presented the substance of his claims to the state courts. Bell, 535 U.S. 685. Fairly presenting his claims to the state courts requires fairly presenting the "substance" of his claims to the state courts. Gray v. Netherland, 518 U.S. 152, 163 (1996); Jones v. Dretke, 375 F.3d 352, 354 (5th Cir. 2004), cert. denied 125 S. Ct. 878 (2005).
To fairly present all his claims to the state court, a petitioner must have informed the state court system of the same facts ( Picard v. Connor, 404 U.S. 270 (1981); Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004), cert. denied 125 S. Ct. 498) and legal theories ( Gray, 518 U.S. at 163; Bagwell, 372 F.3d at 755) on which he bases his assertions in his federal habeas petition. It is insufficient that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made. Anderson v. Harless, 459 U.S. 4 (1982); Bagwell, 372 F.3d at 755. The state court must have been apprised of all the facts ( Picard, 404 U.S. 270; Bagwell, 372 F.3d at 755) and legal theories ( Gray, 518 U.S. at 163; Bagwell, 372 F.3d at 755) on which the petitioner bases his assertions.
Petitioner's petition for discretionary review raises the issue of sufficiency of the evidence and specifically contends that no evidence showed that he ever had actual care, custody, control over, or intent to deliver the cocaine, and no fingerprint evidence was taken from the seized cocaine to suggest that he had possessed it. He contended that the cocaine was not found on him or in his baggage and that Eskridge provided no evidence showing that Petitioner had anything to do with the cocaine. He has exhausted his insufficiency of the evidence claim based on the theory that the evidence presented to support the affirmative link from which the jury reasonably could infer his actual care, custody, or control over the cocaine was based on items not in evidence.
As stated in his ineffective assistance of counsel claims, Petitioner's contention is that the jury linked Petitioner to the cocaine not through items in evidence, but through inadmissible hearsay. As discussed previously, Petitioner has not shown that the hearsay testimony was inadmissible. Furthermore, the seized drugs constituted items admitted into evidence and linking him to the cocaine. Petitioner has not shown that the state court's determination that sufficient evidence linked him to the cocaine was either contrary to established federal law ( see Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002), cert. denied 537 U.S. 953; 28 U.S.C. § 2254(d)(1)) or based on an unreasonable determination of the facts ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(2)).
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). Although Petitioner has not yet filed a notice of appeal, this Court may sua sponte rule on a certificate of appealability because the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before that court, and further briefing and argument on the very issues the court has just ruled on would be repetitious. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
To obtain a certificate of appealability, a petitioner must make a substantial showing of the denial of a constitutional right. United States v. Webster, 392 F.3d 787, 791 (5th Cir. 2004); 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. United States v. Webster, 392 F.3d at 791; 28 U.S.C. § 2253(c)(2). In determining whether to grant a certificate of appealability, a court is limited to a threshold inquiry into the underlying merit of the petitioner's claims; this threshold inquiry does not require full consideration of the factual and legal bases adduced in support of the claims, but instead is based on an overview of the claims in the habeas petition and a general assessment of their merits. United States v. Webster, 392 F.3d at 791.
In cases where a district court rejected a petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003), cert. denied 540 U.S. 956; see also Houser v. Dretke, 395 F.3d 560, 561 (5th Cir. 2004). "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484.
The petitioner's arguments ultimately must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1): Relief may not be granted unless the state court adjudication "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." Tennard v. Dretke, 542 U.S. 274 (2004); Bagwell, 372 F.3d at 753 (5th Cir. 2004), cert. denied 125 S. Ct. 498. A state court's decision is contrary to clearly established Federal law, as determined by the Supreme Court of the United States if the state court arrives at a conclusion opposite to that reached by the 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. Bagwell, 372 F.3d at 753 n. 4. The Supreme Court has held that a certificate of appealability is a "jurisdictional prerequisite" and a court of appeals lacks jurisdiction to rule on the merits until a certificate of appealability has been issued. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In this case, reasonable jurists could neither debate the denial of Petitioner's petition on substantive or procedural grounds nor find that the issues presented are adequate to deserve encouragement to proceed. Id. at 327.
Recommendation
It is accordingly recommended that in the above-styled petition for writ of habeas corpus:
1. the Court dismiss without prejudice, for failure to exhaust, Petitioner's insufficiency of evidence claims based on the theory that any evidence from which the jury reasonably could connect him to the cocaine was based on the hearsay testimony of Officer Cruse and denial of the right to confront witnesses; and
2. the Court dismiss with prejudice the remaining claims and deny Petitioner a certificate of appealability.
Objections
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED.