Opinion
No. 3:03-CV-886-L.
December 2, 2004
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, Institutional Division ("TDCJ-ID"). Respondent Douglas Dretke is Director of the TDCJ-ID. III. PROCEDURAL BACKGROUND
On October 13, 2000, Petitioner was found guilty of possession of cocaine, with intent to deliver. State of Texas v. Lloyd, No. F-9947791-RV (292nd Dist. Ct., Dallas County, Texas, Oct. 13, 2000). Petitioner was sentenced to sixty-five years confinement.
On January 7, 2002, the Fifth District Court of Appeals affirmed the conviction. Lloyd v. State, No. 05-00-01748-CR (Tex.App.-Dallas, pet. ref'd). On June 5, 2002, the Texas Court of Criminal Appeals denied the petition for discretionary review.
On January 3, 2003, Petitioner filed a state petition for habeas relief. Ex parte Lloyd, Application No. 55,173-01. On March 26, 2003, the Texas Court of Criminal Appeals denied the petition without written order. Id. at cover.
On April 24, 2003, Petitioner filed this petition. He argues his conviction is unlawful because: (1) the prosecutor committed misconduct; (2) the trial court abused its discretion; (3) he received ineffective assistance of counsel; (4) the evidence was insufficient; and (5) the clerk's transcript does not contain a copy of the indictment. On July 25, 2003, Respondent filed his answer. The Court now finds the petition should be denied.
IV. FACTUAL BACKGROUND
The following factual background is taken from the opinion of the Fifth District Court of Appeals.
The evidence shows that around 4:30 p.m. on May 6, 1999, Officer Samuel McDonnald was patrolling a small apartment complex known for drug sales. As Officer McDonnald and three other officers performed a "foot patrol" of the apartment, they approached apartment 324. A young man exited the apartment. When he noticed the police officers, he got "a shock look on his face, a startled look, and he walked off and left the door open." McDonnald walked to the door and looked inside the apartment. He saw appellant and Warren sitting near a table, approximately ten feet from where he stood. McDonnald observed what he believed to be crack cocaine on the table. Warren had a red baggie in her hand. Appellant had "a razor blade stuck between his thumb and his hand" and appeared to be cutting rocks of cocaine with the razor blade. McDonnald testified appellant did not have any fingers on either his right or left hand which was very unusual. When McDonnald entered the apartment, appellant crushed some of the cocaine he had been cutting and began brushing it from the table to the floor. McDonnald placed appellant in handcuffs and recovered the remaining cocaine. Officer Roger Rudloff testified he was on patrol with Officer McDonnald on May 16, 1999. Rudloff was walking behind McDonnald. When he entered apartment 324, he saw appellant sitting at a table, raking what appeared to be cocaine off the top of the table. McDonald subdued appellant while Rudloff placed handcuffs on Warren. Rudloff searched appellant and found $2357 dollars and a key to apartment 324.
Officer Michael Mata testified he assisted McDonnald and Rudloff that day. When he entered the apartment, he saw a glass-top mirror table with razor blades, little red baggies, a "bunch of cocaine residue and cocaine up on top and cocaine on the ground." Mata field tested a sample of what appeared to be rock cocaine, and it tested positive for cocaine.
Anne Weaver, a drug chemist for the Southwest Institute of Forensic Science, testified she performed lab tests on the rock substances recovered by the officers. The rocks weighed 4.6 grams and were cocaine. She did not analyze or weigh the substances in the red baggies.Lloyd v. State, No. 05-00-01748-CR (Tex.App.-Dallas, Jan. 7, 2002) at 3-4.
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.See 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.
Additionally, under 28 U.S.C. § 2254(d), a presumption of correctness must be accorded findings of fact made by a state habeas court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation omitted).
2. Prosecutorial Misconduct
Petitioner argues the prosecutor committed misconduct during closing arguments. In his closing, the prosecutor stated that $2300 found on Petitioner at the time of his arrest was proceeds from drug transactions. Petitioner argues the money was from his social security checks. He also argues the prosecutor wrongfully made a plea for law enforcement because he "inflamed the jury's mind that Lloyd was lying" and he "made the jury feel it was their responsibility to find Petitioner Lloyd guilty." Traverse, p. 1.
Prosecutorial misconduct implicates due process concerns. Foy v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992). When a petitioner asserts a due process violation, the Court must determine whether the prosecutorial comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In the habeas context, the appropriate review for such allegations is "the narrow one of due process, and not the broad exercise of supervisory power." Id. (quoting Donnelly, 416 U.S. at 642).
In federal habeas actions, improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner's state court trial was rendered fundamentally unfair within the meaning of the Fourteenth Amendment's Due Process Clause. To establish that a prosecutor's remarks are so inflammatory as to prejudice the substantial rights of a defendant, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that, in probability, but for the remarks no conviction would have occurred. Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986) (citations omitted). A trial is fundamentally unfair if there if there is a reasonable probability that the verdict might have been different had the trial been properly conducted. Foy, 959 F.2d at 1317.
(a) Law Enforcement Plea
Petitioner objects to the prosecution's plea for law enforcement. The prosecution stated:
That particular apartment complex, if you want to call it a complex, has been inundated with drug dealers and drugs. . . . Why are [the police] out there? They're responding to our complaints, citizen's complaints. Complaints from the manager, complaints from the city council. People that are complaining about the drug problems in our communities. And in particular, 300 Bonnieview. We pay [the police] to do that job. We need them to do that job.
Tr. Vol. 4, p. 29: 9-17.
Folks, how many times have you heard about problems in Dallas — drug problems in general? I know you've read it. I know you heard it on the news. I know you know people that have probably been affected by it. There is a big problem in our community. And thank God that we've got officers out here that are aggressive that are trying to do their jobs and trying to get this stuff off the street as well as taking these people off of our streets.
I'm sure you've told yourselves and asked yourselves or you've heard people "Why don't they do something about it." Well, you are actually in a unique position where you can do something about it.
Tr. Vol. 4, p. 42:10-22.
A prosecutor may appeal to a jury to act as the conscience of the community, so long as the remarks are not intended to inflame. See United States v. Ruiz, 987 F.2d 243, 249 (5th Cir. 1993) (finding jury was properly referred to as "arbiters of truth . . . who stand between citizens of this country and an injustice — crimes that were committed against the nation in which we live"). The Court finds the prosecution's remarks were not inflammatory. Further, Petitioner has failed to show that the Prosecutor's statements rendered his trial fundamentally unfair. Petitioner has not shown persistent or pronounced misconduct by the prosecutor. He has also not shown that the evidence at trial was so insubstantial that but for the Prosecutor's statements no conviction would have occurred. His claim is without merit and should be denied.
(b) Drug Sales
Petitioner also states the prosecutor committed misconduct by arguing that the money found on Petitioner was related to drug sales. The prosecutor stated:
[Petitioner's co-defendant] had $500-some-odd dollars in her pocket. We're going to talk more about his money in a second, but he had $2300 in his pocket. And they want you to believe that was from social security.
Tr. Vol. 4, p. 38:22-25.
Talk about that money. Even if it was — and we'll give him the benefit of the doubt. Even if it was a lump sum payment, folks, they want you to believe that the defendant would then carry around six weeks, two months later, six 100-dollar bills, eleven 50-dollar bills, 29 20-dollar bills, 29 ten-dollar bills, 35 five-dollar bills, two 2-dollar bills and 158 one-dollar bills.
You think he went to the back and specifically said can I have 158 one-dollar bills so I can carry in my pocket, since I have very good dexterity. Remember what the officer told you about where it was found? It wasn't all rolled up in one little bundle or rubberband in one pocket. It was all over him. Credibility, folks. That doesn't make sense. Six weeks later carrying around $2300.00 in a high crime area in a known drug location where drugs are found. Come on, folks.Id. at p. 40:9-24.
An assertion of what the prosecutor believes the evidence has shown, however, is not error. Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir. 1987). The Fifth Circuit holds that, "[i]n the context of closing argument, . . . [the prosecutor is not] prohibited from reciting to the jury those inferences and conclusions she wishes the jury to draw from the evidence so long as those inferences are grounded upon evidence." Dowthitt v. Johnson, 230 F.3d 733, 755 (5th Cir. 2000) (quoting United States v. Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998). In this case, the prosecutor requests that the jury draw a desired conclusion based on the evidence. As such, the Court finds the state court denial of Petitioner's claims does not appear to be contrary to, or involve an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
3. Abuse of Discretion
Petitioner argues the trial court abused its discretion when it allowed the prosecutor to present evidence and testimony that the cocaine belonged to Petitioner, and allowed Officer Rudloff to testify that he found a key to the apartment in Petitioner's pocket. Petitioner states no basis for excluding this testimony. Petitioner also argues the court abused its discretion when it sustained an objection to defense counsel's closing arguments regarding the testimony of Officer Mata. Officer Mata testified at trial that he could not remember whether he stated during Petitioner's bond hearing that Petitioner had a knife, or whether he stated Petitioner had a razor blade. Tr. Vol. 3, p. 94. During closing arguments, defense counsel attempted to refer to the bond hearing proceedings. Tr. Vol. 4, p. 26. The prosecution objected that the issues were not in evidence. The court sustained the objection. Petitioner states no basis for finding an abuse of discretion. Conclusory allegations will not support habeas relief. See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Further, even if Petition could show error, the court may not grant habeas relief for an erroneous evidentiary ruling unless the error results in a "denial of fundamental fairness" under the Due Process Clause. Neal v. Cain, 141 F.3d 207, 214 (5th Cir. 1998). Petitioner has failed to make such a showing. Petitioner has failed to show that the state court's decision to deny relief on his claims of prosecutorial misconduct is contrary to clearly established federal law, or is unreasonable in light of the evidence presented. These claims should therefore be denied.
4. Ineffective Assistance of Counsel
To sustain a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), Petitioner must show 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)).
Petitioner claims he received ineffective assistance of counsel because: (1) counsel failed to subpoena a witness from the Social Security Administration; and (2) counsel failed to subpoena a witness from Parkland hospital. Petitioner argues his counsel should have subpoenaed a witness from the Social Security Administration to testify that he received a lump sum payment from the Administration. He states this testimony would have rebutted the prosecution's argument that the money he had at the time of his arrest was proceeds from drug activity. Petitioner also argues his counsel should have subpoenaed a witness from Parkland hospital to testify that Petitioner suffered severe burns to his hands when he was a teenager and that Petitioner could not have used a razor blade or knife to cut cocaine.
Petitioner submits no affidavit or other evidence that any employee of the Social Security Administration or Parkland Hospital would have provided favorable testimony. Additionally, Petitioner submitted no evidence that any such employee would have testified at trial. See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) ("for the appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only that this testimony would have been favorable, but also that the witness would have testified at trial."); see also See Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986) ("hypothetical or theoretical testimony will not justify the issuance of a writ. . . .").
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 claims are without merit and should be denied.
Petitioner has failed to show that the state court's decision to deny relief on his ineffective assistance of counsel claims is contrary to clearly established federal law, or is unreasonable in light of the evidence presented. The claims should therefore be denied.
5. Factual Insufficiency
Petitioner argues the evidence was factually insufficient to support his conviction. Factual insufficiency of the evidence does not provide an independent basis for federal habeas relief. "Factual insufficiency" is a creation of Texas law whereby the reviewing court scrutinizes the factfinder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Federal habeas corpus relief is available only for the vindication of rights existing under federal law. See Manning v. Blackburn, 786 F.2d 710, 711 (5th Cir. 1986). When there has been a violation of state procedure, the proper inquiry is whether there has been a violation of the defendant's due process rights that would render the trial as a whole fundamentally unfair. Id. It is not the function of the federal habeas court to review the interpretation of state law by a state court. See Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). Petitioner's claim of a state law violation is not cognizable on federal habeas review. Manning, 786 F.2d at 711. This claim is without merit and should be denied.
Petitioner may also be arguing that the evidence was legally insufficient to support his conviction. Federal habeas review of an insufficiency of the evidence claim is extremely limited. A federal court may not disturb a conviction in a state criminal proceeding unless no rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gibson v. Collins, 947 F.2d 780, 781 (5th Cir. 1991). The evidence must be viewed in the light most favorable to the verdict. Jackson, 443 U.S. 319; Gibson, 947 F.2d at 781. This standard of review applies in both direct and circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990).
Under Texas law, a person commits possession of cocaine with intent to deliver when he knowingly or intentionally possesses cocaine with the intent to deliver it. See Tex. Health Safety Code Ann. §§ 481.112(a) (Vernon Supp. 1995) and 481.102(3)(D) (Vernon 1994). Knowledge and intent can be inferred from an accused's conduct or remarks, as well as the circumstances surrounding the accused's conduct. Allen v. State, 478 S.W.2d 946, 947 (Tex.Crim.App. 1972). Intent to deliver may also be shown by circumstantial evidence, such as, (1) the quantity of the drugs possessed; (2) the manner of packaging; (3) the presence of large quantities of money; (4) whether the defendant is a drug user; (5) evidence of drug transactions; (6) whether the contraband was in plain view; (7) whether the contraband was conveniently accessible to the accused; (8) whether the accused was the owner of the place where the contraband was found; (9) whether the place where the contraband was found was enclosed; (10) whether paraphernalia to use the contraband was in plain view of or found on the accused; (11) the conduct of the accused indicating a consciousness of guilt; (12) whether the accused had a special connection to the contraband; (13) whether traces of the contraband were found on the accused; (14) any affirmative statements connecting the accused to the contraband. Smith v. State, 737 S.W.2d 933, 941 (Tex.App.-Dallas 1987, pet. ref'd); Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.).
In this case, Officer McDonnald testified that he saw Petitioner holding a razor blade and cutting up what appeared to be rocks of cocaine. Tr. Vol. 3, p. 30. The police officers saw Petitioner push the cocaine onto the floor with his arms and they testified his arms contained residue from the cocaine. Id. at p. 33, 37, 60, 68. They also testified they saw baggies and a scale next to the cocaine. Id. at 38-45, 83. The officers stated that Petitioner had $2357 cash on him. Id. at 65. A chemist testified that the substance found was 4.6 grams of cocaine. Id. at 100.
The state appellant court found the trial evidence sufficient. Viewing this evidence in the light most favorable to the verdict, the Court finds that the evidence was sufficient to prove beyond a reasonable doubt that Petitioner was guilty of the charges.
Petitioner has failed to show that the state court's decision to deny relief is contrary to clearly established federal law, or is unreasonable in light of the evidence presented. This claim should therefore be denied.
6. Indictment
Petitioner argues his conviction must be reversed because the clerk's transcript does not contain a copy of the indictment. The appellate court found the original indictment was lost. A replacement indictment was therefore included in the appellate record. On appeal, Petitioner did not complain about the replacement indictment. The appellate court found the claim was therefore moot. Federal habeas corpus relief is available only for the vindication of rights existing under federal law. See Manning, 786 F.2d at 711. Petitioner's claim does not raise an issue of federal law and should therefore be denied.
RECOMMENDATION:
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2254 be denied with prejudice.