Opinion
No. 3:02-CV-993-P
September 2, 2003
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 Janie Cockrell is Director of the TDCJ — ID. III. PROCEDURAL BACKGROUND
On May 12, 1999, Petitioner was found guilty of indecency with a child younger than 14 years in the Criminal District Court No. 3, Dallas County, Texas, cause number F — 9900815 — SJ. (Trial Court Record pp. 22 — 25). The conviction was also enhanced by a prior rape conviction. ( Id.) Petitioner was sentenced to forty years imprisonment. ( Id.).
On June 21, 2000, the Fifth District Court of Appeals affirmed the conviction. McClellan v. State, No. 05 — 99 — 00855 — CR (Tex.App.-Dallas June 21, 2000) (not designated for publication). On November 29, 2000, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. (PDR No. 1620 — 00).
On November 12, 2001, Petitioner filed a state petition for writ of habeas corpus. ( Ex parte McClellan, Application No. 51,296-01, at 2). On April 10, 2002, the Texas Court of Criminal Appeals denied the petition without written order. ( Id. at cover).
On April 30, 2002, Petitioner filed this petition for writ of habeas corpus. Petitioner argues:
(1) he received ineffective assistance of counsel because:
(a) counsel had a conflict of interest;
(b) counsel did not investigate the facts;
(c) counsel failed to object to hearsay evidence;
(d) counsel did not object to errors made by the prosecution during voir dire;
(2) the prosecution committed misconduct;
(3) he was denied the right to a public trial; and
(4) the evidence was factually insufficient to sustain the conviction.
On August 21, 2001, Respondent filed her answer. On September 4, 2002, Petitioner filed a motion for summary judgment. On September 16, 2002, Petitioner filed a reply to Respondent's 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.
A.M. testified she knew appellant because he was married to A.M.'s grandmother's sister. At a Christmas party, appellant asked A.M. if she wanted to earn some money by cleaning his house before his wife returned from the hospital. A.M. agreed although she had never been to appellant's house. On December 19, 1998, A.M. spent the night at appellant's house. During the evening, appellant and several other adults were drinking in the living room.
Later in the evening, appellant called A.M. back to his bedroom to show her some songs and poetry. A.M.'s male cousin wanted to come but appellant said no. Although A.M. was scared, she went to appellant's bedroom a second time when he called her back. Behind closed doors, appellant took a pack of cigarettes in the palm of his hand and tried to put them up A.M.'s shirt and bra while feeling around her breasts with his fingers. Then he tried to kiss her by sticking his tongue in her mouth. At that point she told appellant, "No, " and left the room.
The third time appellant called A.M. to his bedroom, he told her to lie down on the bed and he laid next to her where he talked about sexual positions. During each encounter, the appellant and the victim were alone, and the door was closed. The next day, A.M., who was upset and crying, told her family about the incident. They called the police. A.M. was thirteen years old at the time.McClellan v. State, No. 05 — 99 — 00855 — CR (Tex.App.-Dallas June 21, 2000) at 1. 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. Ineffective assistance of counsel
Petitioner claims he received ineffective assistance of counsel because: (1) counsel had a conflict of interest; (2) counsel did not investigate the facts of the case; (3) counsel did not object to the introduction of hearsay evidence; and (4) counsel did not object to errors made by the prosecution during voir dire.
(a) Conflict of interest
When a claim of ineffective assistance of counsel is based on an alleged conflict of interest, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance, thereby rendering the verdict unreliable. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); see also, Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 1244 and n. 5 (2002). If a petitioner shows that his attorney's conflict of interest actually affected the adequacy of his representation, he need not demonstrate prejudice before he may obtain relief. Cuyler, 446 U.S. at 349 — 50.
In this case, Petitioner failed to raise his conflict of interest claim at trial. Petitioner must therefore show that an actual conflict of interest adversely affected his lawyer's performance, thereby rendering the verdict unreliable. Id. at 348.
Petitioner argues a conflict existed because at the time of trial, his counsel represented his stepson and prosecution witness, Patrick Baker, in an unrelated criminal case and an unrelated civil case. (Mem. in support of petition, pp. 5 — 9).
(i) civil case
Petitioner failed to raise his claims regarding the civil case before the state courts. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722 n.l (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claims procedurally barred. Id.
Petitioner has not presented the claim that his counsel had a conflict of interest because he represented Patrick Baker in a civil case to the Texas Court of Criminal Appeals. If this Court required him to do so, the claims would be subject to dismissal under the Texas abuse — of — the — writ doctrine. Tex. Code Crim. Pro. Ann. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). "[A]rticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and . . . has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law. . . . " Id. (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
To overcome the procedural bar established by the abuse — of — the — writ doctrine, a petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524. Petitioner has shown no cause for his failure to present this claim to the Texas Court of Criminal Appeals.
Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. This exception is "confined to cases of actual innocence, 'where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). To establish the required probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has presented no new, reliable evidence showing that it was more likely than not that no reasonable juror would have convicted him. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on Petitioner's claim that his counsel had a conflict of interest because he represented Patrick Baker in a civil case.
(ii) criminal case
Petitioner argues his counsel represented Patrick Baker in an unrelated criminal case involving cocaine possession. Petitioner states that Mr. Baker received deferred adjudication probation for these charges. He argues that his counsel failed to question Mr. Baker about his consumption of alcohol and marijuana on the evening of the incident because this information could have resulted in the revocation of Mr. Baker's probation.
Petitioner has not shown that his counsel "actively represented conflicting interests" when he cross — examined Patrick Baker. See United States v. Olivares, 786 F.2d 659, 663 (5th Cir. 1986). There is no evidence that Petitioner's counsel was currently representing Mr. Baker at the time of Petitioner's trial. It appears Petitioner's counsel's representation of Mr. Baker terminated in January, 1999, after Patrick Baker pled guilty to cocaine possession and was sentenced to deferred adjudication. Petitioner submits no evidence that his counsel represented Mr. Baker in any probation revocation proceeding that was later filed, and he presents no evidence that his counsel had Mr. Baker's interests in mind during Petitioner's trial. Petitioner has not shown his counsel acted under a conflict of interest. See Olivares, 786 F.2d at 663 ("we hold that 'active representation of conflicting interests' connotes more than merely cross — examining a former client who, at an earlier stage of the case, had also paid his codefendants' legal fees.").
Further, even if the Court were to find a conflict, the assumed conflict did not adversely affect counsel's performance. Petitioner claims that because of the alleged conflict his attorney failed to effectively cross — examine Mr. Baker and failed to question Mr. Baker about his alcohol and marijuana use on the night of the incident. The prosecution, however, elicited testimony from Mr. Baker that he had been drinking on the night of the incident. (Tr. Vol. 3, p. 100). Petitioner's attorney also referred to Mr. Baker's alcohol consumption on that night. ( Id. at p. 107). Finally, there is no evidence that Mr. Baker consumed marijuana on the night of the incident and no evidence that Petitioner's counsel had any basis to question Mr. Baker about marijuana use. Petitioner has failed to establish that any alleged conflict adversely effect his lawyer's performance.
Petitioner has failed to show that the state court's decision to deny relief on this ineffective assistance of counsel claim is contrary to clearly established federal law, or is unreasonable in light of the evidence presented. The claim should therefore be denied.
(b) Claims of ineffective assistance of counsel under Strickland
Petitioner has failed to establish that his counsel acted under a conflict of interest. Petitioner's claims of ineffective assistance of counsel are therefore analyzed under the Strickland v. Washington, 466 U.S. 668 (1984) standard. To sustain a claim of ineffective assistance of counsel under Strickland, 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)).
(i) failure to investigate
Petitioner argues his counsel was ineffective because he failed to adequately investigate. To establish that counsel was ineffective for failure to investigate, the petitioner must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).
Petitioner claims his counsel failed to: request pre — trial discovery; file pre — trial motions; adequately confer with Petitioner; interview witnesses; take depositions of witnesses; interview the complaining witness; obtain a layout of Petitioner's home; and obtain a list of all witnesses present on the night of the incident. (Mem. in support of petition p. 12).
Petitioner argues that a further investigation would have showed that two witnesses were willing to testify on his behalf. He states that one of these witnesses was Patrick Baker's girlfriend, Debbie Kingsten. He does not name the second witness. At trial, the complaining witness stated that on the night of the incident, she told Debbie Kingsten about Petitioner's actions. Petitioner states that Ms. Kingsten would have testified that she offered the complaining witness a ride home on that night, but that the complaining witness told Ms. Kingsten she did not want to go home and that she "liked it here and wanted to stay." ( Id. at p. 13).
Petitioner submits no affidavit or other evidence that Ms. Kingsten would have provided favorable testimony. Additionally, Petitioner submitted no evidence that Ms. Kingsten 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 also does not state who else his counsel should have called as a witness and he provides no evidence regarding any other witness' proposed testimony or that any other witness would have testified at trial. 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 also argues that his counsel failed to investigate the complaining witness. He states an investigation of this witness would have showed that she engaged in drug use, prior sexual misconduct, prior "run — ins" with the legal community and "other bad acts." (Mem. in support of petition, p. 13). He also alleges that an interview of the complaining witness would have showed that "she had her boyfriend follow the petitioners (sic) car to his home, that she had brought a condom with her, that she had told petitioner that she had three boyfriends, was having sex with all of them and enjoyed it." (Petitioner's Reply to Respondent's Answer, p. 3). Petitioner has failed to produce any evidence of the complaining witnesses alleged prior conduct and/or her alleged statements. Mere conclusory allegations are insufficient. Anderson, 18 F.3d at 1221. Petitioner has failed to show that any interview of the complaining witness would have been favorable to his defense. "[H]ypothetical or theoretical testimony will not justify the issuance of a writ" See Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986) (citation omitted).
At trial, the complaining witness testified that she was thirteen years old at the time of trial. (Tr. Vol. 3, p. 66). She testified that on the night in question, Petitioner and the other adults in the house were drinking beer. (Tr. Vol. 3, p. 65 — 66. She stated that Petitioner offered her a beer. ( Id. at 66). She testified that Petitioner put his hands under bra and felt her breasts. ( Id. at 70 — 71). She stated that Petitioner tried to kiss her with his tongue. ( Id. at 71 — 72). She also testified that Petitioner told her to lay on the bed and that he laid down next to her. ( Id. at 73). She stated that "he started telling me that he could show me ways of doing it without actually having to do it." ( Id.). And that when Petitioner was referring to "doing it" he meant sexual positions. ( Id.). Petitioner has failed to show his counsel was constitutionally deficient for not interviewing the complaining witness. He has also not established the prejudice required under Strickland. Petitioner's claims should therefore be denied.
Petitioner's remaining claims regarding his counsel's failure to investigate are conclusory. He argues his counsel failed to file motions for pre — trial discovery or other motions, failed to adequately confer with Petitioner, failed to obtain witness lists, failed to depose witnesses and failed to obtain a lay — out of Petitioner's home. (Mem. in support of petition, p. 12). Petitioner fails to state what pre — trial motions should have been filed, or how these motions, or a layout of Petitioner's home or further conference with Petitioner or any further investigation would have likely changed the outcome of the trial. 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.
(ii) failure to object to prosecutor comments
Petitioner argues his counsel was ineffective for failing to object to errors made by the prosecution during voir dire. Petitioner states the prosecution informed the jury panel that Petitioner had a prior criminal record. (Mem. in support p. 16). The record shows, however, that the prosecutor did not impermissibly comment on Petitioner's criminal background. The prosecutor stated in voir dire that:
Petitioner had prior convictions for rape by force and lust of a child/lewd lascivious conduct. (Tr. Vol. 6, Ex. 1A — 2).
Now, you might hear from more than one witness on either side. And either side will have an opportunity to impeach or cross — examine the witness.
Now, what can someone be impeached with? Their credibility can be impeached with prior convictions. Have they ever been convicted of a felony or a crime of moral turpitude? That may be something you might want to consider in deciding whether they're telling the truth or not.
Will you automatically hear that if someone takes the stand and they have been convicted of a felony or a crime of moral turpitude? No. Because the judge will have to make a determination if that conviction occurred within the last ten years, if it's too prejudicial, you still won't hear about it. And that's if any witness testifies. So you may hear some information about certain witnesses who testify; you may not.
A witness can also be impeached with what's called prior inconsistent statements. If they said something one day and they're saying something different now, either side will have an opportunity to say, "Well, didn't you say this? Something different on a previous date?" So there are different ways that their credibility might be attacked. And that goes for anybody who takes the stand, whether it's the witness or the defendant in any case.
(Tr. Vol. 2 pp. 57 — 58).
The Court finds the prosecutor did not impermissibly comment on Petitioner's prior criminal record. The prosecution merely explained how any witness' credibility may be impeached. Petitioner's counsel was not ineffective for failing to object to this explanation. Counsel is not required to make frivolous objections, arguments or motions. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Petitioner's claim is without merit and should be denied.
(iii) failure to object to hearsay evidence
Petitioner argues his counsel failed to object to hearsay evidence by the complaining witness and three other witnesses. (Mem. in support of petition p. 18). Regarding the complaining witness, Petitioner argues his counsel should have raised a hearsay objection to the following testimony:
Defense Counsel: Okay, why were you scared when you went back there the second time if he didn't do anything the first time?
Complaining Witness: Because just — I knew that he was like a little intoxicated, and I didn't know what he might do or if he might try something, because I have heard from past people that he —
Prosecutor: Your Honor, —
Complaining Witness: — was like that.
(Tr. Vol. 3, pp. 83 — 84).
Petitioner also argues his counsel was ineffective for not objecting to the following testimony:
Defense Counsel: Okay. Why would you have been scared to tell them if nothing happened the first time you went back there? If he just brought you back to show you poetry the first time, why were you scared to go back there the second time?
Complaining Witness: Why was I scared to go back there the second time?
Defense Counsel: Right.
Complaining Witness: Because, people had told me before that he was like that, and I knew he was intoxicated. And I was scared of what he was capable of doing.
(Tr. Vol. 3, p. 86).
Petitioner argues his counsel was ineffective for not objecting to this testimony as hearsay. Hearsay is an unsworn out — of — court statement offered to prove the truth of the matter asserted. See Tex. R. Evid. 801(d). Here, defense counsel asked the complaining witness why she was afraid to be alone with Petitioner. She replied that she was afraid because other people had told her Petitioner was "like that" — presumably that he might attempt sexual misconduct. The complaining witness' statements are not hearsay in that they were not offered to prove the truth of the matter asserted, that is, that Petitioner might attempt sexual misconduct. The statements instead were offered to explain why the complaining witness was afraid to be alone with Petitioner. Petitioner's claims that his counsel was ineffective for failing to raise a hearsay objection to this testimony is without merit.
Petitioner also argues his counsel should have raised a hearsay objection to the following testimony of Patrick Baker:
Prosecutor: At some point did Debbie tell you something [the complaining witness] had told her about the defendant, John McClellan?
Baker: Yes ma'am. It was either that evening or early the next morning. I can't recall the exact time, but she had made a statement along that line, yes.
Prosecutor: What did she say [the complaining witness] had told her?
Baker: She had told me that [the complaining witness] had told her that when they were in the room, that John had touched her on the breast, had put his hand on her thigh, had kissed her and used his tongue, and that — had asked her if she'd ever had sex with a boy before.
(Tr. Vol. 3, pp. 102 — 103).
It is not clear that this testimony was offered to prove the truth of the matter asserted, rather than showing that the complaining witness made an outcry statement on the night of the incident. The testimony may have been elicited to rebut an express or implied assertion that the complaining witness' claims were a recent fabrication. Further, Petitioner has failed to show that but for a hearsay objection to this testimony, the result of the trial would have been different. Crane, 178 F.3d at 312. Patrick Baker's testimony regarding the complaining witness' outcry statements was cumulative of other testimony at trial. The complaining witness herself testified that she made these outcry statements to Baker's girlfriend Debbie Kingsten. (Tr. Vol. 3, p. 74). Three other witnesses, Michael Baker, Jettie — Ann Horton and Emily Mancillas also testified that the complaining witness made statements to them regarding the incident. (Tr. Vol. 3, pp. 120, 128, 135 — 36). Petitioner has failed to show the required prejudice for an ineffective assistance of counsel claim. His claim should therefore be denied.
Petitioner also makes the generalized claim that his counsel should have made a hearsay objection to Michael Baker's testimony. Petitioner does not cite any portion of Michael Baker's testimony that he alleges is objectionable, but instead states that his testimony is inadmissible hearsay "for the most part." (Mem. in support of petition, p. 20). 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). Further, Petitioner's counsel made a hearsay objection to Michael Baker's testimony that was sustained by the trial court. (Tr. Vol. 3., p. 121). 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.
3. Prosecutorial Misconduct
Petitioner argues the prosecutor committed misconduct during voir dire and during closing arguments.
(a) Voir dire
Petitioner argues the prosecutor committed two instances of misconduct during voir dire by asking potential jurors to render expert opinions.
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.
Petitioner argues the prosecutor committed misconduct by asking potential jurors to render expert opinions.
In the first instance, Petitioner objects to the prosecutor's following statements:
Juror: Actually, I don't think it would bother the State's case, but I don't know if this would matter to the defense. I'm a pediatrician and I take care of kids who — some of them have been abused, and I've been deposed and even testified, so I'm just bringing that up now.
Prosecutor: Okay. Let me ask you this: The State is not required to produce any corroborating evidence, no physical evidence to prove this offense. And in a breast touching, you know, you're not going to find any fingerprints or any red marks or anything like that, so would that be a fair statement, generally, Mr. Owen?
Court: Don't answer that. Don't answer that question.
(Tr. Vol. 2, p. 61).
Petitioner argues this juror was biased against him, he was denied due process and was not afforded an impartial trial because this juror was placed in the role of an expert witness. (Mem. in support p. 21 — 22). Petitioner has failed to show that the Prosecutor's question rendered his trial fundamentally unfair. Further, the court instructed the panel member not to answer the question, and the panel member complied with the court's instruction. (Tr. Vol. 2, p. 61). Additionally, this panel member was not selected as a juror. (Tr. Vol. 2, pp. 85 — 86). 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 question no conviction would have occurred. His claim is without merit and should be denied.
Petitioner also argues that the prosecutor asked another panel member, a police chief, for an expert opinion. Petitioner objects to the following statements:
Prosecutor: Has anyone ever heard of the term "grooming" in the context of child abuse cases?
I see — is it Det. Jackson?
Juror: Chief.
Prosecutor: Chief. I see you nodding your head. Can you tell me what you think of as "grooming" in the context of child abuse?
Juror: It's when an adult will befriend a child and start taking them places and doing things just like a buddy system, and it progresses from there to petting on the head to petting them in other places.
Prosecutor: And sometimes seeing how far he can get.
Juror: That's right.
(Tr. Vol. 3, pp. 29 — 30).
Petitioner cites no authority for his claim that it was impermissible for the prosecutor to ask a panel member for his understanding of the term "grooming." Not only has Petitioner not shown this question was improper, he 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 question no conviction would have occurred. His claim is without merit and should be denied.
(b) Comments regarding the complaining witness
Petitioner argues the prosecutor committed misconduct during closing arguments when she commented on the complaining witness. The prosecutor stated:
Prosecutor: And why should you believe her? What motive does she have to come in here and lie to you people? What does she gain from this? She had nothing against this man. Her aunt, who she's close to, married him, loves him. The other members of the family who are getting to know him seemed to think he was okay. What does she have to gain from coming in here, dividing the family, talking to a bunch of strangers about her little body and how uncomfortable she felt when somebody was touching it. What does she have to gain? Nothing. She told you the truth, just like she told Debbie, Patrick's girlfriend, who had too much to drink that night; just like she told Jettie, her best friend; just like she told her grandmother, her aunt, her cousin Michael, because she thought he had a right to know, since this is his step — grandfather; and just like she told the police. She told you the truth.
(Tr. Vol. 4, pp. 6 — 7).
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). Further, even assuming the remarks were improper, they were not so prejudicial as to render the trial fundamentally unfair. Id. See also Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (finding that under the harmless error standard a petitioner must show the alleged error had a substantial and injurious effect or influence in determining the jury's verdict). Petitioner's claim is without merit and should be denied.
(c) Petitioner's failure to testify
Petitioner argues the prosecutor committed misconduct by commenting on his failure to testify. Petitioner specifically objects to the prosecutor's following statements:
Prosecutor: Certainly, you know, the defense doesn't have to call anyone. Certainly they don't. But when they start talking about who we don't call, they have a right to call anyone they want.
(Tr. Vol. 4, p. 17).
When alleged prosecutorial misconduct implicates a constitutional right, such as the right to remain silent, courts must determine whether the prosecutor's statement was "manifestly intended or was of such character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988). If the prosecutorial misconduct is constitutional error under this test, the court must then determine whether the error is harmless. Id. "A comment regarding a defendant's Fifth Amendment rights must have a clear effect on the jury before reversal is warranted." United States v. Rocha, 916 F.2d 219, 232 (5th Cir. 1990).
In this case, the prosecutor's statements do not appear manifestly intended to be taken by the jury as a comment on the failure of Petitioner to testify, nor were they of such a character that a jury would naturally and necessarily take them to be a comment on Petitioner's failure to testify. The comments instead appear to be made to rebut the defense counsel's closing argument that the prosecution did not call Debbie Kingston as a witness. (Tr. Vol. 4, p. 10). Petitioner's claim is without merit and should be denied.
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. Right to a public trial
Petitioner argues he was denied the right to a public trial. He states the prosecutor told the judge she intended to call Petitioner's wife and sister — in — law as witnesses. These witnesses were then excluded from the courtroom. He also claims that during the prosecutor's request to exclude these witnesses, the Judge stated, "I knew I didn't want to handle this case. I should've transferred it to another judge." (Mem. in support of petition p. 29). Petitioner therefore argues the judge was biased in determining whether to exclude the witnesses. Under Federal Rule of Evidence 615 and Texas Rule of Evidence 614, however, witnesses may be excluded from the courtroom so they cannot hear the testimony of other witnesses.
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.
5. Factual insufficiency
Petitioner argues the evidence was factually insufficient to support his conviction because the evidence failed to comply with the Texas corroboration — or — outcry statute. Tex. Code Crim. Proc. art. 38.07 (West 2002). 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). In this case, Petitioner alleges the evidence failed to satisfy the state corroboration — or — outcry statute. His claim of a state law violation is not cognizable on federal habeas review. Manning, 786 F.2d at 711. Additionally, by its own terms, the state corroboration — or — outcry statute does not apply to a thirteen — year — old victim. See Tex. Code Crim. Proc. art. 38.07.
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.
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.