Opinion
CIVIL ACTION NO. 3:01-cv-0595-R.
November 5, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner William Eugene Mathis (Mathis) is an inmate confined at the Dick Ware Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) at Colorado City. Respondent is the Director of TDCJ-ID.
Statement of the Case: Upon his plea of not guilty to the offense of assault on a public servant as charged in the indictment filed in cause No. F99-19926, Petitioner was tried by a jury which found him guilty. Ex Parte Mathis, Appl. No. 47,634-01 at 012. Subsequently, the trial court sentenced him to twenty-five years imprisonment. Id.
Mathis did not appeal his conviction. However, on August 8, 2000, Mathis filed a state application for writ of habeas corpus challenging his conviction pursuant to Texas Code of Criminal Procedure art. 11.07. Id. at 002. On September 22, 2000, the trial court reviewed Petitioner's application, as well as the trial court records, and thereafter made findings of fact and conclusions of law. The Texas Court of Criminal Appeals subsequently denied Mathis's application on November 15, 2000 without a written order on the findings of the trial court without a hearing.
In response to the instant petition and this court's show cause order, Respondent filed an answer together with copies of Mathis's prior state proceedings. Respondent claims that Mathis has failed to exhaust his state remedies regarding three of his five grounds presented in his instant petition, as well as a subpart of another, but does not move to dismiss the petition as a "mixed petition."
Findings and Conclusions:
Mathis presents five grounds in his petition before this court:
1. Ineffective assistance of counsel
a. Failure to advise Petitioner of facts, evidence, and law surrounding case and failure to investigate and form a viable defense and trial strategy.
b. Failure to call knowledgeable witnesses and introduce documentary evidence
c. Advised Petitioner to accept a twenty-five year sentence and waive his right to appeal.
2. Trial court erred by not granting Petitioner's motion to discharge appointed counsel
3. Trial court erred by not granting Petitioner's motion for continuance for discovery
4. Trial court obstructed justice by withholding documentary evidence from the jury
5. Improprieties in State Habeas Court-failure to grant oral hearing and withholding of documentary evidence from findings and conclusions.
Before addressing the merits of Petitioner's allegations, the court considers the lack of exhaustion issue raised by Respondent. Federal jurisprudence has long required that a state prisoner normally must exhaust all available state remedies before seeking federal habeas relief. See Nobles v. Johnson, 127 F.3d 409, 419 (5th Cir. 1997), cert. denied 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998) citing Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886); see also 28 U.S.C. § 2254(b)(1)(A) (West 2000). To exhaust state remedies, a habeas petitioner must have fairly presented the substance of his claim to the state courts. Id. at 420 citing Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). The exhaustion requirement is not satisfied if the prisoner presents new legal theories or factual claims in his federal habeas petition. Id. citing Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982). According to the Fifth Circuit, and as urged by Respondent, a distinct but related limit on the scope of federal habeas review is the doctrine of procedural default. See Nobles 127 F.3d at 420. A procedural default can occur when a prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. quoting Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991).
Since 1994, the Texas Court of Criminal Appeals has applied a strict abuse-of-the-writ doctrine, tempered only by an exception for cause. See Barrientes v. Johnson, 221 F.3d 741, 758-59 (5th Cir. 2000), cert. denied 121 S.Ct. 902, 148 L.Ed.2d 948 (2001) citing Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994) (en banc) (the court announced that it would as a "rule" dismiss as abuse of the writ "an applicant for a subsequent writ of habeas corpus rais[ing] issues that existed at the time of his first writ."). Art. 11.07 Section 4 would prohibit Mathis from filing a successive state habeas application, unless the application alleges and establishes that the grounds asserted therein were not and could not have been raised in his first habeas application. See Ex parte Barber, 879 S.W.2d at 891. After reviewing Mathis's article 11.07 application, it is clear that the only three allegations he presented to the Texas state courts are la, lb, and 2 above. Mathis's remaining claims, i.e. 1c, 3, and 4 above, all occurred prior to the conclusion of his criminal trial and were known to him. Therefore, he cannot satisfy art. 11.07 § 4(a)(1) by establishing that "the factual or legal basis for [such claims] were unavailable to him when he filed his art. 11.07 application" on August 2,2000. See Fearance v. Scott, 56 F.3d 633,642 (5th Cir. 1995), cert. denied 515 U.S. 1153, 115 S.Ct. 2603, 132 L.Ed.2d 847 (1995).
Barrientes involved a capital murder conviction. Collateral review of a death penalty case is governed by the provisions of art. 11.071 TEX. CODE CRIM. PRO. ANN., which includes an "abuse-of-the-writ" provision, i.e. Section 5. Collateral review in a non-capital case is governed by art. 11.07, which also contains an abuse-of-the-writ provision, i.e. Section 4, which is substantially identical. The Fifth Circuit has noted that in his concurring opinion in Ex Parte Davis, former Presiding Judge McCormick, joined by Judges White, Meyers, and Keller, expressed the opinion that "[t]he successive writ provisions of Article 11.071, Section 5(a), for the most part are merely a legislative codification of the judicially created `abuse of the writ' doctrine." Barrientes v. Johnson, 221 F.3d at 758-59 quoting Exparte Davis, 947 S.W.2d at 226 (McCormick, J., concurring).
Although claim 5, supra, was unavailable at the time he filed his application, this claim is not cognizable in a § 2254 petition. See Tijerina v. Estelle, 692 F.2d 3, 5 n. 2 (5th Cir. 1982).
In his first ground for relief, properly before the court on the merits, Mathis alleges that he was denied effective assistance of counsel because his trial counsel, Anthony Lyons, failed to advise Petitioner of facts, evidence, and law related to the criminal charge against him. Mathis also alleges that counsel failed to investigate, failed to locate and present witnesses whose testimony would have been favorable to Petitioner's defense, and failed to introduce documentary evidence.
When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052,2064,2068 (1984). When considering the reasonableness of counsel's conduct, a court must indulge a strong presumption that it falls within the wide range of reasonable professional competence, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct at 2065; Westley v. Johnson, 83 F.3d 714, 719 (5th Cir. 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 773 (1997). In determining whether prejudice has resulted from counsel's alleged deficient performance, the court must determine whether counsel's performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1993).
The only specificity regarding Mr. Lyons alleged ineffective assistance comes from Mathis' s state art. 11.07 application, wherein he claims that Mr. Lyons: failed to organize a trial strategy, failed to investigate, did not have a firm command of the facts of the case or governing law, did not seek out and interview potential witnesses, did not move to admit a doctor's report, allegedly indicating that the complainant-officer had no bruises or contusions as a result of the assault. See Appl. at 6. Regarding the allegation that Mr. Lyons failed to seek out and interview potential witnesses, Petitioner claims that Lyons was remiss in not reviewing information from an arraignment docket which would have yielded the names of individuals who could have testified on Petitioner's behalf At the request of the trial court, Lyons submitted an affidavit, along with various attached exhibits, filed in Petitioner's art. 11.07 application, to answer the allegations raised against him. See Appl. 46,634-01 at 042-71. In the affidavit, Lyons indicated that he apprised Petitioner, of any and all information with respect to the charge against him. Id. Lyons also indicated that Petitioner received copies of the incident report, charging instrument, the complainant-officer's medical records, affidavit for arrest, etc. Id. With regard to the allegation that Lyons failed to seek and interview potential witness, the affidavit describes his concerns regarding the prior criminal records these potential witnesses likely had, as well as that, despite numerous requests for names of these potential witnesses, no information was forthcoming from Petitioner. See Appl. 46,634-01, at 042-43 and attachments.
It is this doctor's report which constitutes the documentary evidence which Petitioner complains that the trial court withheld from the jury under ground 4 above. Apparently, according to Petitioner, the jury, during deliberations, requested to see this particular report; however, the judge declined the request because said report was not admitted into evidence. It is a well-settled proposition of law that during deliberations a jury is only entitled to review evidence that was admitted during the course of a trial. Accordingly, even on the merits, this claim fails.
Contrary to Petitioner's contention the medical records showed the presence of back pain and a soft tissue contusion. See Appl. No. 47,634-01 at 051.
"Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy." Wilkerson v. Cain, 233 F.3d 886, 892-893 (5th Cir. 2000) citing United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983). In Cockrell the Fifth Circuit further elaborated on this notion by stating that because "allegations of what a witness would have testified to are largely speculative, courts should view with great caution claims of ineffective assistance of counsel when the only evidence of a missing witness's testimony is from the defendant." 720 F.2d at 1427. Furthermore, "[i]n order for the [petitioner] to demonstrate the requisite Strickland prejudice, the [petitioner] must show not only that this testimony would have been favorable, but also that the witness[es] would have testified at trial." Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985), citing Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981). Since Petitioner failed to present an affidavit executed by any of these potential witnesses, reflecting that these individuals could have provided favorable evidence and that they would have testified in Brown's behalf, no basis for relief is presented. Moreover, as noted above Mathis's trial attorney filed an affidavit in his art. 11.07 application. The trial court, specifically, found Mr. Lyons to be trustworthy and that the statements contained in his affidavit were true, correct, and dispositive of the Petitioner's allegations. Id. at 040. Moreover, the Court of Criminal Appeals expressly relied on this finding by the trial court in its denial of Petitioner's art. 11.07, without a written order on the findings of the trial court. See Appl. at cover. These findings coupled with the presumption that an attorney's performance is constitutionally sufficient and the absence of any affidavits executed by uncalled witnesses preclude relief on Petitioner's first ground.
In his second ground for relief, Mathis complains that the trial court erred by failing to grant his motion to discharge Mr. Lyons, his appointed counsel. In a letter accompanying his motion, Mathis complained to the trial court that he: "could not get a fair trial with [Mr. Lyons]," "want[ed] [an] attorney to help [him] with [his] best interest in mind," "didn't feel [Mr. Lyons] assisted him properly and [that he] believe[d] [that] [Lyons] [was his] enemy." See Appl. at 020-30; see also pg. 25-26 (Petitioner's Motion to Discharge Counsel).
The record reflects that the trial court denied his oral motion to substitute appointed counsel on March 3, 2000. See Appl. at 082. Mathis wrote the court again in a letter filed on March 14,2000. Id. at 020. The habeas record also contains additional letters to the court dated March 8, 2000 ( Id. at 023-24) and a hand-written Pro Se motion purportedly mailed to the court on March 8, 2000 ( Id. at 025-26), neither of which reflects that they were received and filed in the record.
It is well-settled that an indigent defendant, entitled to appointed counsel, is not entitled to the counsel of his choice. The obligations of a court appointed attorney are aptly described in U.S. v. Moore, 706 F.2d 538, 540 (5th Cir. 1983). Moore also sets out what a defendant is not entitled to in a court-appointed attorney.
A review of Petitioner's complaints with his attorney, expressed in March 2000, approximately 4 months prior to his jury trial, discloses that he merely harbored a subjective belief that his attorney was not performing in Petitioner's best interest which falls far short of the showing necessary to require the services of a substituted appointed counsel. However, determinative of this ground is the fact that his attorney provided the representation to which an accused is entitled under the Sixth Amendment. See Green v. Johnson, 160 F.3d 1029, 1045 (5th Cir. 1998), cert. denied 525 U.S. 1174, 1195 S.Ct. 1107 (1999).
Despite the fact that Mathis was subject to an enhanced punishment in light of his prior felony convictions, Appl. at 077-78, his attorney was able to negotiate a 15 year plea offer ( Id. at 016) which Mathis rejected.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus should be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.