Opinion
No. 4:02-CV-828-Y
January 28, 2003
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 under 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 Richard Allen Kelley, TDCJ-ID #786935, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Hightower Unit in Dayton, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Kelley was indicted for sexual assault of a child under 17 and two counts of indecency with a child by contact. (2 State Habeas R. at 49.) On April 29, 1997, a jury found him guilty, and the trial court sentenced him to 20 years' confinement for each offense to be served concurrently. ( Id. at 51.) These concurrent sentences were ordered to run consecutively to Kelley's 15-year sentence for aggravated sexual assault, which was imposed in 1996. ( Id. at 52; 1 State Habeas R. at 3.)
The Second District Court of Appeals affirmed the trial court's judgment, but the Texas Court of Criminal Appeals vacated the court of appeals' judgment and remanded to that court for reconsideration in light of recent developments in the applicable law. Kelley v. State, 2-97-332-CR (Tex.App.-Fort Worth Mar. 12, 1998), vacated and remanded, No. 840-98 (Tex.Crim.App. Oct. 20, 1999) (not designated for publication). On remand, the court of appeals again affirmed the trial court's judgment, and the Court of Criminal Appeals refused his petition for discretionary review. Kelley v. State, 22 S.W.3d 628 (Tex.App. — Fort Worth 2000, pet. ref'd).
Kelley filed a state application for writ of habeas corpus challenging his conviction, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Kelley, No. 52,112-02 (Tex.Crim.App. Aug. 14, 2002) (not designated for publication). Kelley filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on September 23, 2002. See Spotville v. Cain, 149 F.3d 374 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
Although Kelley initially filed his federal petition in the United States District Court for the Northern District of Texas, Dallas Division, the petition was transferred to this division. 28 U.S.C. § 2241 (d).
D. ISSUES
Kelley raises four issues:
1. Trial counsel was constitutionally ineffective.
2. He was denied due process when the trial date was changed.
3. He was denied a fair trial when the State threatened the defense witnesses.
4. His confession was involuntary due to unlawful duress by investigating officials.
E. RULE 5 STATEMENT
Cockrell argues that Kelley's claims arguing that (1) counsel was ineffective for failing to tell Kelley about the change in the trial date, (2) counsel was ineffective when he failed to interview potential witnesses, and (3) Kelley was denied due process when the trial date was changed have not been exhausted and asserts that they have been procedurally defaulted; however, Cockrell believes that Kelley's remaining allegations have been properly exhausted.F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody under a state court judgment 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 United States Supreme Court 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 precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002), cert. denied, 71 U.S.L.W. 3470 (U.S. Jan. 13, 2003) (No. 01-10886).
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 this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. 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. Exhaustion
Kelley argues that he was denied due process when his trial date was changed from June 16, 1997 to April 28, 1997 and that counsel was ineffective for failing to inform him of the date change in a timely manner and for not interviewing potential defense witnesses. Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254 (b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 160 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
As Cockrell correctly points out, Kelley failed to raise these issues in either his petition for discretionary review on direct appeal or in his state application for habeas corpus relief. (Resp't Answer at 6-7.) Kelley argues that he raised these claims in his first state habeas corpus application. (Pet'r Reply at 5.) However, his first state application attacked his 1996 aggravated sexual assault conviction. Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
Kelley asserts that these claims were raised in his first application but are no longer reflected in the record because the District Attorney tampered with his application. (Pet'r Reply at 7, 14.) This allegation is unsupported by anything in the record and cannot be credited based solely on Kelley's conclusory statements.
However, Kelley cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Kelley has not given any credible explanation to excuse his default. Indeed, contrary to Kelley's assertions (Pet'r Reply at 6), any problem with the trial date or with counsel's performance was known to Kelley before he filed his second state habeas corpus application. E.g., Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254 (b)(2).
3. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90.
Kelley's complaints about counsel were reviewed and rejected during state collateral-review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254 (d).
Kelley asserts that trial counsel was constitutionally ineffective because he:
1. did not investigate Kelley's involuntary confession;
2. communicated poorly with Kelley; and
3. failed to subpoena defense witnesses.
For the following reasons, Kelley has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Kelley asserts that counsel was ineffective for failing to investigate the fact that various officials threatened him and his family with the possibility of their children being taken away from them, resulting in Kelley's confession being involuntary. (Federal Pet. at 6; Pet'r Reply at 10-11, 14-15.) Kelley fails to prove that the alleged threats actually occurred, that counsel was aware of the threats and the resultant involuntary confession, and that witnesses refused to testify in his favor because of the threats. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp.2d 398, 400 (N.D. Tex. 2001). Indeed, counsel stated in his affidavit that Kelley did not mention any undue coercion relating to his confession. (2 State Habeas R. at 24.) See Randle v. Scott, 43 F.3d 221, 225 (5th Cir.) (holding counsel not deficient when defendant told attorney to quit investigating prior conviction, even though it had been reversed, to expedite his guilty plea), cert. denied, 515 U.S. 1108 (1995); Bell v. Watkins, 692 F.2d 999, 1009 n. 11 (5th Cir. 1982) (holding counsel not deficient when defendant refused to provide a list of witnesses that would help his case), cert. denied, 464 U.S. 843 (1983); Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982) (same), cert. denied, 461 U.S. 910 (1983); Akridge v. Hopper, 545 F.2d 457, 459 (5th Cir.) (holding counsel not deficient where defendant claimed he could remember nothing of the crime and gave no indication of a credible defense), cert. denied, 431 U.S. 941 (1977). Kelley has failed to overcome the presumption of correctness supporting the state courts' findings against Kelley's position on this issue.
Kelley next argues that counsel was ineffective for failing to properly communicate with him and spending an insufficient amount of time with him before the trial. (Federal Pet. at 6; Pet'r Reply at 8, 12.) Length of time spent in consultation, without more, does not establish that counsel was ineffective. Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980); see Rosa v. United States, 170 F. Supp.2d 388, 400 (S.D.N.Y. 2001). Further, in counsel's affidavit filed in response to Kelley's state habeas corpus application, counsel stated that he communicated fully with Kelley about possible witnesses and the effect of his plea in light of his signed confession. (2 State Habeas R. at 24-25.) The Court of Criminal Appeals held that trial counsel was not ineffective on this basis. ( Id. at 30-34, 48.) The factual finding that counsel sufficiently communicated with Kelley is presumed correct. Thus, counsel was not defective.
Kelley claims that counsel was ineffective for failing to subpoena Carri Thompson, an investigator for Child Protective Services. He argues that Thompson could have testified as to the unconstitutional methods by which the evidence against Kelley was obtained. (Federal Pet. at 8; Pet'r Reply at 9-10, 13.) Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre, 238 F.3d at 635-36. For Kelley to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witness would have testified at trial. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Kelley has failed to provide an affidavit or other evidence from Thompson. The limited and conclusory information Kelley provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; Cockrell, 720 F.2d at 1427; Lang, 159 F. Supp.2d at 400. Because Kelley has failed to establish ineffective assistance as required by Strickland, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Kelley argues he is unable to meet the Strickland standard on any of his ineffective-assistance claims because the authorities conspired, and continue to conspire, to violate his constitutional rights. (Pet'r Reply at 8-9, 11.) This is a conclusory allegation that cannot overcome his burden under Strickland. United States v. Jones, 614 F.2d 80, 82 (5th Cir.), cert. denied, 446 U.S. 945 (1980).
4. Due Process and Threats
Kelley argues that he was denied due process and a fair trial when the State threatened potential defense witnesses that their children would be taken away if they testified in favor of Kelley. (Federal Pet. at 7; Pet'r Reply at 14.) Once again, Kelley has offered no proof to support his charge that the State threatened his witnesses, which resulted in their unwillingness to testify in his favor at trial. Contrary to Kelley's assertions, these unnamed witnesses have not provided this court with affidavits establishing the threats and their coercive effect. (Pet'r Reply at 14.) This court cannot grant habeas relief on such conclusory and unsupported allegations. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Kelley invites this court to conduct its own investigation into his conclusory assertions. (Pet'r Reply at 12, 15.) It is Kelley's burden, and not this court's, to produce sufficient facts to support his allegations. Goodwin v. Johnson, 224 F.3d 450, 456 (5th Cir. 2000), cert. denied, 531 U.S. 1120 (2001).
5. Involuntary Confession
Kelley argues that, based on threats that his children would be taken away from him, his confession was the result of coercion and was, thus, involuntary. (Federal Pet. at 8; Pet'r Reply at 14-15.) He further asserts that the threats subjected him to unlawful duress. (Federal Pet. at 9.) Kelley's allegations, however, are conclusory and unsupported by any proof of the coercion and duress. Thus, Kelley's Fifth-Amendment argument fails. Byrne v. Butler, 845 F.2d 501, 514 (5th Cir.), cert. denied, 487 U.S. 1242 (1988); cf. West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996) (concluding allegation insufficient to support ineffective-assistance claim), cert. denied, 520 U.S. 1242 (1997); Cunningham v. Estelle, 536 F.2d 82, 83 (5th Cir. 1976) (recognizing conclusory and unsupported assertions regarding prejudicial pretrial publicity cannot support due-process claim). Accordingly, in the absence of any evidence of official coercion, Kelley has failed to establish that his confession was involuntary or that he was subjected to undue duress.
6. Summary
In sum, Kelley is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Kelley was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
G. EVIDENTIARY HEARING REQUEST
Kelley requests that this court hold an evidentiary hearing on his claims. (Federal Pet. at 9; Pet'r Reply at 5.) A court shall not conduct an evidentiary hearing unless a petitioner failed to develop a claim in state court, provided that the claim relies on a new rule of constitutional law or on "a factual predicate that could not have been previously discovered through the exercise of due diligence" and the facts would "establish by clear and convincing evidence" the petitioner's actual innocence. 28 U.S.C. § 2254 (e)(2); see also RULES GOVERNING SECTION 2254 CASES 8(a). Kelley has failed to satisfy the statutory requirements. He has not demonstrated the existence of any factual disputes that warrant a federal evidentiary hearing.
II. RECOMMENDATION
Kelley'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 February 18, 2003. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 18, 2003 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, the 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, is returned to the docket of the United States District Judge.