Opinion
No. 4:02-CV-616-Y
November 15, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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 are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Kenneth Duane Juneau, TDCJ-ID #854505, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Pampa, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
On March 1, 1997, outside a Fort Worth bar, Juneau hit Henry Taylor with his fist. Taylor fell and struck his head on the wheel rim of a car and later died as a result of injuries sustained from the fall. (Clerk's R. at 3; 4Rep. R. at 90.) Juneau was arrested, but was released on pretrial bond. (4Rep. R. at 97.) Juneau then fled the jurisdiction to Las Vegas, Nevada, where he was later arrested and returned to Texas. (4Rep. R. at 97.) On October 9, 1998, a jury found Juneau guilty of aggravated assault, but found he did not use a deadly weapon in commission of the offense. (Clerk's R. at 99.) The trial court, on December 14, 1998, after a hearing and after finding the enhancement paragraph in the indictment true, assessed Juneau's punishment at 45 years' imprisonment. (Clerk's R. at 99-100.) Juneau appealed his conviction, but the Second Court of Appeals affirmed the trial court's judgment on October 12, 2000. See Juneau v. State, 49 S.W.3d 387 (Tex.App.-Fort Worth 2000, pet. ref'd). On April 18, 2001, the Texas Court of Criminal Appeals refused Juneau's petition for discretionary review. Juneau v. State, No. 0093-01 (Tex.Crim.App. Apr. 18, 2001) (not designated for publication).
Juneau subsequently filed a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Juneau, No. 52, 302-01, at cover (Tex.Crim.App. May 29, 2002) (not designated for publication). He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on July 8, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
The court construes Juneau's claims to raise the following issues:
(1) The trial court erred by failing to instruct the jury on the lesser included offenses of assault, manslaughter, and criminally negligent homicide.
(2) In violation of Brady v. Maryland, the state improperly withheld the toxicology report of the victim, which would have supported a "concurrent causation" defense.
(3) In violation of due process, the jury instructions created a "permissive inference" not supported by the facts.
(4) Trial and appellate counsel rendered ineffective assistance.
(5) The state's attorney engaged in prosecutorial misconduct by lying to the jury. (Pet. at 7-8 Addendum)
E. RULE 5 STATEMENT
Cockrell believes that Juneau has sufficiently exhausted his state remedies on the issues presented and, thus, does not move for dismissal on this ground. (Resp't Answer at 3.)F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Under 28 U.S.C. § 2254(d), a 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 he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Instructions on Lesser Included Offenses
In his first five grounds, Juneau appears to contend that the state trial court erred by failing to instruct the jury on the lesser included offenses of assault, manslaughter, and criminally negligent homicide, given his intoxicated state at the time of the incident. He alleges that intoxication altered his "mental state from one of intent to recklessness." (Pet. at 7-8; Pet'r Br. in Support at 1-2; Pet'r Rebuttal to Resp't Answer at 1-8.) See TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 1981); TEX. PENAL CODE ANN. §§ 19.04, 22.01, 22.02 (Vernon 1994 Supp. 2002).
The court notes that, at trial, Juneau did not even request a lesser included offense instruction on manslaughter. (4Rep. R. at 110-12.)
As correctly pointed out by Cockrell, however, the failure to instruct a jury on a lesser included offense in a noncapital state trial is not a federal constitutional matter. (Resp't Answer at 6.) See Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999); Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir. 1985); Easter v. Estelle, 609 F.2d 756, 758 (5th Cir. 1980) (and cases cited therein); see also Hopkins v. Reeves, 524 U.S. 88, 96-97 (1998). Compare Beck v. Alabama, 447 U.S. 625, 637 (1980) (holding state statute precluding consideration of lesser included offense in capital cases, where evidence supports such a verdict, violates due process). As further pointed out by Cockrell, even assuming Juneau's acts were merely reckless, that was sufficient to support a conviction for aggravated assault, which is defined under the state penal statute as intentionally, knowingly, or recklessly causing serious bodily injury to another. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(1).
As a matter of state law, the Texas Court of Criminal Appeals rejected Juneau's claims under these grounds and apparently concluded that each offense was either not a lesser included offense of aggravated assault, or, if so, that the evidence did not support an instruction on the lesser included offense, as discussed infra. See TEX. CODE CRIM. PROC. ANN. art. 37.09. "Absent a violation of the Constitution, we defer to the state court interpretation of its law for whether a lesser-included-offense instruction is warranted." Creel, 162 F.3d at 390-91. These grounds provide no basis for federal habeas relief.
3. Brady Material
In Juneau's sixth ground, he contends the state, in violation of Brady v. Maryland, 373 U.S. 83 (1963), failed to disclose the toxicology report of the victim until after he was convicted. Juneau alleges the results, which indicated the victim was intoxicated, would have supported a "concurrent causation issue that the victim's fall and death was more attributable to his intoxication than to [Juneau's] hit," which caused little or no injury internally or externally to the victim. Juneau urges that the state's failure to disclose the test results in a timely manner thus denied him an affirmative defense. (Addendum.)
Federal due process requires the prosecution to disclose material, exculpatory information to an accused. Brady, 373 U.S. at 87. Such non-disclosure is violative of due process if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). In the instant case, even assuming the state withheld the results of Taylor's toxicology tests until after Juneau's conviction, there was ample evidence that the victim was intoxicated on the night in question. (3Rep. R. at 43, 50, 143, 179) Thus, this court cannot perceive how the result of Juneau's trial would have been different had the results of the report been disclosed to him sooner.
Moreover, as a matter of state law, § 6.04 of the Texas Penal Code provides, in relevant part:
(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed.
TEX. PENAL CODE ANN. § 6.04(a)-(b) (Vernon 1994).
Under the facts of this case, there is no evidence that Juneau's actions were clearly insufficient to produce the result of the victim's death and that the victim's intoxication was a concurrent cause sufficient to cause his death. Witness testimony indicated that Juneau hit the victim and the victim then fell and struck his head on a wheel rim of a car. This evidence reflects that the victim would not have died but for Juneau's actions. There is nothing in the record to show that the victim's intoxication alone was clearly sufficient to cause him to fall, hit his head on the wheel rim, and die. See Ferrel v. State, 55 S.W.3d 586, 590 (Tex.Crim.App. 2001). Consequently, Juneau is criminally responsible for Taylor's death.
4. Improper Jury Instruction
In his seventh ground, Juneau complains of the instruction to the jury that, "Our law provides that a person is criminally responsible if the result would not have occurred but for his conduct." He alleges that the jury should have been further charged on concurrent causation in conjunction with the given charge, and that the omission of a concurrent causation instruction resulted in a "permissive inference" that he intended the result. (Addendum to Pet.; Pet'r Br. in Support; State Habeas R. at 25.)
A permissive inference suggests to the jury a possible conclusion to be drawn if the state proves predicate facts. See Francis v. Franklin, 471 U.S. 307, 314 (1985). A permissive inference violates due process only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Id. at 314-15.
First, the court does not interpret the instruction given in this instance to suggest a presumption or conclusion that Juneau intended to kill the victim or the victim to die from his actions. Compare Sandstrom v. Montana, 442 u.s. 510, 517-21 (1979) (where jurors were told that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts"). More importantly, the court cannot conclude that a reasonable juror could have understood the charge as meaning Juneau intended such a result from his actions. The charge merely states Texas law regarding criminal responsibility as set forth in § 6.04(a) of the penal code. It does not relieve the state of the burden of proving any element of the crime charged by means of a presumption, including Juneau's mental state at the time of the incident. Further, as previously noted, there was no evidence produced at trial to justify a concurrent causation instruction.
5. Ineffective Assistance of Counsel
In Juneau's eighth and ninth grounds, he alleges ineffective assistance of trial and appellate counsel. (Addendum to Pet.; Pet'r Br. in Support.) Specifically, he contends trial counsel was ineffective by failing to pursue various defenses, e.g., concurrent causation and insanity due to intoxication, and to pursue jury instructions on lesser included offenses. (Addendum to Pet.; Pet'r Br. in Support.) Similarly, he argues appellate counsel was ineffective by failing to raise the issues in his state writ application and/or to cite and argue the case law presented therein.
A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688; see also Smith v. Robbins, 528 U.S. 259, 287-88 (2000) (applying Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 688. The second prong requires a showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688. An ineffective assistance of counsel claim is a mixed question of law and fact. Id. at 698. Thus, where, as here, the claim has been reviewed on its merits and denied by the state courts, federal habeas relief will be granted only if the state court's decision was contrary to or involved an objectively unreasonable application of Strickland. Bell v. Cone, 122 S.Ct. 1843, 1852-53 (2002).
If the state court does not make express findings of fact, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sam, 372 U.S. 293, 314 (1963); Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir.), cert. denied, 414 U.S. 868 (1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir.), cert. denied, 411 U.S. 968 (1973). Further, if the state court did not articulate the constitutional standards applied, this court may assume that the state court applied correct standards of federal law to the facts in the absence of evidence that an incorrect standard was applied. Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001).
The standards of Townsend v. Sam have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir.), cert. denied, 454 U.S. 1109 (1981).
Turning to Juneau's complaints, the choice by counsel to rely upon certain lines of defense to the exclusion of others is largely a strategic or tactical choice. See generally Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th Cir. 1987). In the absence of evidence in the record concerning trial counsel's reasons for not pursuing one or more of the defenses raised by Juneau or that such defenses would have been both tenable and better alternatives to the defense presented at trial, we presume that Juneau's counsel made an informed and conscious strategic decision not to pursue a different defensive strategy. Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983).
Further, in contradiction of Juneau's claims, the court notes that trial counsel requested instructions on the purported "lesser included offenses" of assault and criminally negligent homicide, but the state trial court denied the request. (4Rep. R. at 110-12.) As a matter of state law, a criminal homicide, whether it be manslaughter or criminally negligent homicide, is not a lesser included offense of aggravated assault. See Juneau, 49 S.W.3d at 392. Moreover, under Texas law, to be entitled to a lesser included offense instruction on assault, it was necessary for Juneau to show that assault with bodily injury is a lesser included offense of aggravated assault and that, if guilty, he was guilty only of assault. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 919 (1993). Assuming assault is a lesser included offense of aggravated assault as defined in article 37.09 of the Texas Code of Criminal Procedure, Juneau cannot satisfy the second prong of Rousseau under the facts this case. A person commits an aggravated assault if he intentionally, knowingly or recklessly causes serious bodily injury to another. TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(1). "Serious bodily injury" is defined as any injury that "creates a substantial risk of death or that causes death serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46) (Vernon 1994). Because Taylor died, the evidence clearly shows that Juneau intentionally, knowingly, or recklessly caused serious bodily injury. There was no evidence here that, if guilty, Juneau was guilty only of simple assault.
Likewise, Juneau's claims regarding his appellate counsel are equally without merit. Appellate counsel is not required to raise every conceivable argument urged by his client on appeal, regardless of merit. Robbins, 528 U.S. at 288. The question is whether Juneau has shown that appellate counsel's failure to raise the issues presented herein and in his state writ application worked to his prejudice, i.e., that but for counsel's errors he would have prevailed on his appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir. 1991). Because Juneau failed to raise a meritorious claim in the instant petition or his state writ application, he cannot meet this burden.
In sum, having independently reviewed each of Juneau's claims in his state writ application in conjunction with the state court records, the adjudication of his ineffective assistance claims does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard.
6. Prosecutorial Misconduct
In his tenth ground, Juneau claims the prosecutor engaged in prosecutorial misconduct during closing argument by telling the jury that he had been a lieutenant colonel with prior military training, when in fact he had never been in the armed forces. (Br. in Support; 4Rep. R. at) The evidence at trial, however, reflects that Juneau, himself, told a bar employee on the night in question that he was a retired lieutenant colonel with Special Forces. Regardless of whether or not Juneau's assertion was true, the prosecutor was permitted to comment on and draw any reasonable inferences from the evidence presented at trial. See Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983).
7. Summary
In sum, the record supports the state court's determination of the issues raised in this federal proceeding. The state court's adjudication of the issues is not contrary to or involve an unreasonable application of federal law, in light of the record as a whole, and is entitled to deference and the presumption of correctness.
II. RECOMMENDATION
Juneau's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 6, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 6, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.