Opinion
No. 3-02-CV-0229-D
September 5, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gabriel George Saunders, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of aggravated assault with a deadly weapon following a bench trial. Punishment, enhanced by two prior felony convictions, was assessed at life imprisonment. His conviction and sentence were affirmed on direct appeal. Saunders v. State, No. 05-99-006225-CR (Tex.App.-Dallas, Apr. 12, 2000, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied on the findings of the trial court. Ex parte Saunders, No. 50,736-01 (Tex.Crim.App. Dec. 12, 2001). Petitioner then filed this action in federal court.
II.
Petitioner raises multiple issues in four grounds for relief. Succinctly stated, he contends that: (1) the trial court improperly admitted evidence of an unadjudicated extraneous offense at the punishment hearing; (2) the judge failed to conduct a competency hearing; (3) his attorney had a conflict of interest; and (4) he received ineffective assistance of counsel.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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 state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
Petitioner first argues that the trial court improperly admitted evidence of an unadjudicated extraneous offense at the punishment hearing. After petitioner was found guilty of aggravated assault against his girlfriend, Lisa Johnson, the state introduced evidence that petitioner had also assaulted John Hamilton. Petitioner struck Hamilton twice in the face with his fists, causing him to fall backwards and hit his head on the ground. Hamilton later died as a result of massive head injuries. In his defense, petitioner testified that he and Hamilton had fought a week before their deadly encounter. Petitioner believed that Hamilton carried a straight razor in his pocket and was out to get him.
Petitioner now contends that the admission of this evidence violated Texas law. In particular, he points to article 37.07, § 3(g) of the Texas Code of Criminal Procedure, which provides:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner as required by Rule 404(b), Texas Rules of Criminal Evidence. If an attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 2002). Prior to trial, defense counsel requested the disclosure of any extraneous offenses "with the same particularity as would be contained in an indictment." (St. App. Tr. 42). However, the prosecutor never revealed his intent to elicit evidence regarding the Hamilton murder during the punishment phase of the trial. Because the state failed to comply with the requirements of article 37.07, § 3(g), petitioner maintains that this extraneous offense evidence should have been excluded.
Rule 404(b) of the Texas Rules of Criminal Evidence, incorporated by reference in article 37.07, § 3(g), provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.
TEX. R. EVID. 404(b).
The court initially observes that petitioner has failed to allege a federal constitutional violation. Instead, his claim arises solely under Texas law. Such a claim is not cognizable in a federal habeas proceeding unless the petitioner can establish that the error deprived him of a fair trial. See Lucas v. Johnson, 132 F.3d 1069, 1082 (5th Cir.), cert. dism'd, 119 S.Ct. 4 (1998) (habeas relief warranted only when erroneous admission of evidence played a "crucial, critical (and] highly significant" role in trial); Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir.), cert. denied, 107 S.Ct. 3278 (1987). No such showing has been made here. Petitioner does not argue that his attorney was unaware of the facts and circumstances surrounding the Hamilton murder or the state's intent to use this extraneous offense at the punishment hearing. To the contrary, petitioner was under indictment for this murder at the time of his trial. The indictment presumably contained all the elements required by article 37.07, § 3(g), including "the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act." TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g).
The Hamilton murder indictment was dismissed on the state's motion after petitioner was sentenced to life imprisonment in the instant case. (St. Hab. Tr. 157).
Moreover, petitioner has not shown that the state's failure to comply with the technical requirements of this statute resulted in a significantly harsher sentence. The evidence adduced at the guilt-innocence phase of the trial showed that petitioner repeatedly beat and kicked Lisa Johnson in front of her 11-year old daughter. During this brutal attack, petitioner brandished a firearm and threatened to kill Johnson. Petitioner left the house after the police were called, but returned later that night. When he was refused entry, petitioner went across the street and fired his gun. At the punishment hearing, the state proved up two prior convictions for indecency with a child, two prior convictions for UUMV, and one prior conviction for manslaughter. Several witnesses testified that petitioner set fire to his jail cell and was verbally and physically abusive to detention officers while awaiting trial. Even without considering evidence of the Hamilton murder, the trial judge was justified in imposing a life sentence. This ground for relief is without merit and should be overruled.
C.
Petitioner further argues that the trial judge should have held a competency hearing in light of his irrational behavior both before and during trial.
1.
Due process requires that a defendant be legally competent to stand trial. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). A defendant is competent if "[he] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). State courts must employ procedures designed to protect against the trial of incompetent defendants. Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975); Pate, 86 S.Ct. at 842-43. However, a competency hearing is not required in all cases. The trial court should consider: (1) any history of irrational behavior; (2) the bearing and demeanor of the defendant prior to trial; and (3) prior medical opinions. See Enriquez v. Procunier, 752 F.2d 111, 113 (5th Cir. 1984), cert. denied, 105 S.Ct. 2658 (1985); Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir.), cert. denied, 100 S.Ct. 487 (1979).
These procedures are set forth in article 46.02 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 46.02, et seq. (Vernon Supp. 2002).
2.
Petitioner relies on the testimony of various witnesses at the punishment hearing to support his claim of incompetency. One witness, Deputy Sheriff Mike Spurger, testified that he was called to escort petitioner back to his cell after the court proceedings concluded the previous day. Petitioner was belligerent and uncooperative. When Spurger and another deputy arrived, petitioner turned to them and said, "F — you. No, you're going to have to cuff me." (SF-II 99). The deputies handcuffed petitioner and instructed him to walk to his cell. Petitioner ignored their instructions, knelt on the floor, and stated, "No. Y'all are going to have to drag me or carry me." (Id. at 100). At one point, petitioner rolled over on his back and kicked Spurger three or four times. He was carried from court to a hallway leading to the jail.
Deputy Sheriff George Van Pool testified that he encountered petitioner in February 1999, approximately two months before his trial. Van Pool described petitioner as "very negative and aggressive." (Id. at 106). On one occasion, he refused to relinquish a pen, paper, and contact solution before visiting with his attorney. When Van Pool reminded petitioner that these items could not leave the tank area, petitioner stated, "F — you, a — hole. I'm leaving the tank." (Id. at 108). Petitioner pounded on the bars to his cell and demanded to see his lawyer. Another deputy sheriff, Jenny Lee Brodnax, testified that petitioner had a poor reputation among detention officers. His disciplinary record included 20 days of restrictions for disrespecting an officer and 50 days of restrictions for setting a fire in his cell. Finally, petitioner's mother, Linda Joyce Saunders, testified that her son takes anti-depressants to control his temper. According to Saunders, "When Gabriel is on his medication, he is a humble meek person and he's cooperative. When he's not on his medication, you really can't deal with him" (Id. at 135).
The state habeas court found that petitioner was "fully competent at the time of the offense and at the time of the trial." (St. Hab. Tr. 157). Petitioner has failed to show that this decision is unreasonable in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). The fact that petitioner was belligerent, uncooperative, and on medication to control his temper does not mean that he lacked the ability to consult with his lawyer or understand the proceedings against him. This ground for relief is without merit and should be overruled.
D.
Petitioner also faults his attorney and the trial judge for failing to disclose and inquire into a possible conflict of interest with one of the state's witnesses. At the punishment hearing, the state called Deputy Sheriff Richard Hamb, a fingerprint expert, to prove-up petitioner's prior convictions and pen packets. Defense counsel stipulated to Hamb's credentials, stating "I have had him testify before." (SF-II 115). Petitioner now believes that he was denied a fair trial and effective assistance of counsel because his attorney failed to challenge the qualifications of this witness.
In order to prevail on this claim, petitioner must show that his lawyer actively represented conflicting interests and that the conflict adversely affected his performance. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980); Blankenship v. Johnson, 118 F.3d 312, 318 (5th Cir. 1997). Petitioner has failed to meet this heavy burden. As the state habeas court noted:
While proving up prior convictions, the State offered up the testimony of Richard Hamb, a fingerprint expert with the Dallas County Sheriff's Department. As counsel has long practiced in Dallas County, he was aware of the qualifications of Mr. Hamb and stipulated to him being an expert. There was no harm to the [petitioner] with this stipulation and there is nothing in the record or the writ that indicates Mr. Hamb's testimony was false. The court finds there was no conflict of interest in this matter.
(St. Hab. Tr. 158). This court agrees. It is ludicrous to suggest that defense counsel had a conflict of interest because he stipulated to the qualifications of an obviously qualified witness. Indeed, petitioner does not offer any basis for challenging Hamb as a fingerprint expert. This ground for relief is without merit and should be overruled.
E.
Petitioner argues that his representation at trial and on appeal was constitutionally deficient. In particular, he complains that counsel: (1) did not adequately investigate the case or review the prosecutor's file; (2) elicited testimony about otherwise inadmissible convictions; (3) did not understand the elements of the offense; (4) failed to request a psychiatric exam and investigate an insanity defense; (5) advised him to waive a jury; and (6) failed to raise meritorious issues on appeal.
1.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler, 100 S.Ct. at 1716. In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner first must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). The Strickland test also applies to claims that counsel was constitutionally ineffective for failing to raise certain issues on direct appeal. United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000).
2.
Petitioner contends that his attorney failed to conduct an independent investigation of the case or review the prosecutor's file. However, he does not suggest what any further investigation would have revealed. Nor does petitioner explain how the outcome of the proceedings would have been affected by additional investigation or a review of the prosecutor's file. These conclusory allegations are insufficient to merit habeas relief. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Barnard v. Collins, 958 F.2d 634, 642 n. 11 (5th Cir. 1992), cert. denied, 113 S.Ct. 990 (1993) (habeas petitioner must show how alleged errors and omissions were constitutionally deficient).
Petitioner also complains that his attorney elicited testimony from him about otherwise inadmissible convictions. While testifying on direct examination during the guilt-innocence phase of the trial, petitioner explained that he stopped fighting with his girlfriend after learning that her relatives had called the police. Counsel then asked:
Q: And what happened next?
A: I reached up under the bed. When she says: The kids called the police, the first thing when she said police — the first thing ran through my mind was get out of there.
Q: Why was that?
A: Because I done, you know served some time before. And I had quite a few run-ins with the police
Q: What have you served time for before?
A: Several cases. Unauthorized use. Manslaughter. Indecency. And that's, basically, it.
(SF-II 63-64). On cross-examination, petitioner once again admitted to those prior convictions. (Id. at 69-70). Petitioner now believes that, but for the testimony elicited by his attorney, his criminal record would not have been admissible because the convictions were more than 10 years old.
Under Texas law, evidence that a witness has been convicted of a felony or crime of moral turpitude is admissible for impeachment purposes. See TEX. R. EVID. 609(a). However:
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
TEX. R. EVID. 609(b). The evidence shows that petitioner was convicted in two cases of indecency with a child and one case of UUMV in 1988. Punishment was assessed at five years confinement in each case. Petitioner also was convicted of manslaughter in 1995 and UUMV in 1997. He was sentenced to two years on the manslaughter charge and 180 days in the UUMV case. Contrary to petitioner's assertion, each conviction was admissible for impeachment purposes at his aggravated assault trial in April 1999. The manslaughter and second UUMV convictions occurred less than 10 years before trial. Presumably, petitioner served at least a year in prison on his 1988 indecency and UUMV convictions, which would bring his release date within the 10-year period. The state habeas court found that "the age of convictions did not prevent their use as enhancement cases or impeachment evidence." (St. Hab. Tr. 158). Petitioner has failed to adduce any evidence to rebut this finding.
Petitioner was originally sentenced to 10 years probation in both indecency cases. However, his probation was subsequently revoked and the trial court sentenced him to five years confinement.
Next, petitioner claims that his attorney did not "have a firm grip of the law and fact when he should have known that mere presence of a deadly weapon under proper circumstances can [sic] be enough to instill fear and threaten a person with bodily injury." (Hab. Pet., Attch. at 3). Apparently, petitioner believes that the evidence in this case was insufficient to establish the elements of aggravated assault with a deadly weapon because he did not retrieve his gun until after the fight with his girlfriend had concluded. Petitioner is mistaken as to the law and the evidence. In order to prove that the victim of an assault was threatened with imminent bodily injury, the state need only prove that the defendant used or exhibited a deadly weapon at some point during the criminal episode. See TEX. PENAL CODE ANN. §§ 22.01(a)(2) 22.02(a)(4) (Vernon 1989). At trial, Lisa Johnson testified that petitioner pointed a loaded gun at her and threatened to kill her. (SF-II 16). This is more than sufficient to establish the elements of aggravated assault with a deadly weapon under Texas law. See e.g., Dorough v. State, 639 S.W.2d 479, 480 (Tex.Crim.App. 1982) (evidence that gun was pointed at victim's head proved imminent threat); Dickerson v. State, 745 S.W.2d 401, 403 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd) (pointing of gun establishes threat).
In two related arguments, petitioner contends that his attorney failed to request a psychiatric examination or investigate an insanity defense. According to petitioner, several family members and other witnesses were prepared to testify that he had been diagnosed and treated for mental illness. However, counsel never investigated or pursued a defense based on petitioner's mental condition. In rejecting this claim, the state habeas court found that petitioner was fully competent at the time of the offense and at the time of trial. (St. Hab. Tr. 157). Moreover, the state court noted that an insanity defense was not available "since [petitioner] insisted he did not commit the offense." (Id.). See also Cannon v. Johnson, 134 F.3d 683, 687 (5th Cir. 1998) (refusal of defendant to admit guilt sufficient reason for counsel to avoid insanity defense). The affidavits and medical records submitted by petitioner do not rebut this finding. Although this evidence shows that petitioner suffered from depression and had a violent temper, there is nothing to suggest that a court-ordered psychiatric evaluation was warranted. Nor is there any evidence of a "severe mental disease or defect" necessary to meet the legal definition of insanity. See TEX. PENAL CODE ANN. § 8.01 (Vernon 1994). Counsel was not ineffective for failing to investigate or pursue these matters.
Section 8.01 of the Texas Penal Code provides:
(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b) The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial behavior.
TEX. PENAL CODE ANN. § 8.01.
Petitioner also criticizes his attorney for advising him to waive a jury trial. The state habeas court found that, in view of the overwhelming evidence of guilt, neither the verdict nor punishment would have been different had the case been tried to a jury. (St. Hab. Tr. 158-59). Petitioner has offered no evidence, other than his own conclusory assertion, to rebut this finding. Consequently, this ground for relief should be overruled.
Lastly, petitioner argues that his appellate lawyer failed to raise various issues on direct appeal involving ineffective assistance of counsel at trial, the sufficiency of the evidence, and objections made by the prosecutor. The court has already determined that petitioner did not receive ineffective assistance of counsel at trial. Therefore, it would have been futile to appeal on that basis. Petitioner also fails to explain how the evidence was insufficient to support his conviction or identify any improper objections made by the state. His unsupported and conclusory assertions do not merit federal habeas relief. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.