Opinion
NO. 3-03-CV-0138-G.
June 30, 2003.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gary Vincent Scott, 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 murder and sentenced to 50 years confinement. His conviction and sentence were affirmed on direct appeal. Scott v. State, No. 05-99-01676-CR (Tex.App.-Dallas, Apr. 4, 2001, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order on the findings of the trial court. Ex parte Scott, No. 53,982-01 (Tex.Crim.App. Nov. 27, 2002). Petitioner then filed this action in federal court.
II.
Petitioner raises four broad issues in multiple grounds for relief. Succinctly stated, petitioner contends that: (1) the trial judge, the prosecutor, and defense counsel "lied" to the jury regarding the location of the murder weapon; (2) the prosecutor, knowingly used perjured testimony to obtain his conviction; (3) he received ineffective assistance of counsel; and (4) the appellate record was incomplete.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 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. See also Neal v. Puckett, 286 F.3d 230, 246 n. 14 (5th Cir. 2002) (declining to further elaborate on the "objectively unreasonable" standard articulated in Williams). 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 contends that the trial judge, the prosecutor, and defense counsel conspired to violate his right to a fair trial and to mislead the jury about the location of the murder weapon. At issue are remarks made by defense counsel during closing argument and answered by the prosecutor on rebuttal. In his final summation to the jury, defense counsel chastised the state for not calling certain witnesses to testify at trial and failing to produce the murder weapon in court. (SF-V at 27-28). This prompted the prosecutor to respond:
Ladies and gentlemen, you have got all of the evidence before you that you need. Mr. Fishbum said why didn't they bring all of these other witnesses. We have to list every potential witness that we might call, that we know about, both for guilt/innocence and punishment, prior to the trial. So, no, you might not have gotten to hear from all of them, yet. But you heard from all of the witnesses that you need to hear about for the guilt/innocence phase of this trial. You have heard from all of the witnesses who have been able to prove to you beyond any doubt, not just a reasonable doubt, that Gary Vincent Scott is the one who pulled that trigger. And the fact that he was able to get rid of the gun should not get him off. Because all of the evidence shows you that he is the one on September 2d 1998, that pulled that trigger, committing an act clearly dangerous to Lafayette Johnson's life, and killed him.
( Id. at 39) (emphasis added). Defense counsel did not immediately object to this argument. However, the next day, counsel moved for a mistrial on the ground that the prosecutor knew that "the murder weapon had been turned over the police department and was in their possession and that the murder weapon therefore had not been gotten rid of . . ." (SF-VI at 27). The trial judge denied the motion, finding that the prosecutor's remarks were not misleading and merely responded to the argument made by defense counsel. ( Id. at 28).
Petitioner now claims that his attorney knew the weapon had been recovered from Kurtis Robert Coleman four months after the murder, but deliberately misled the jury by implying that no one knew the location of the gun. He further alleges that counsel failed to object to the prosecutor's improper jury argument in a "so-called act of chivalry to save the Lady Prosecutors from the embarrassment of Prosecutor misconduct and to hide his own ineffectiveness, at the same time." (Pet. Mem. Br. at 14). Finally, petitioner maintains that the trial judge was biased against him and failed to grant a mistrial in order "to convict an accused who had become a thorn in the Judge's side." ( Id. at 11).
1.
The crux of petitioner's claim is that the prosecutor made an improper jury argument by suggesting that he had disposed of the murder weapon and that the trial judge should have granted a mistrial on that basis. In order to obtain federal habeas relief, petitioner must show that the argument was so prejudicial that it deprived him of a fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871,40 L.Ed.2d 431 (1974); Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985), cert. denied, 106 S.Ct. 2907 (1986). A trial is fundamentally unfair if the petitioner would not have been convicted but for the prosecutor's persistent and improper remarks. Rushing v. Butler, 868 F.2d 800, 807 (5th Cir. 1989).
2.
The record in this case fails to establish a constitutional violation. In an affidavit submitted the state habeas court, Allan Fishburn, petitioner's attorney, denied misleading the jury about the location of the murder weapon and explained that his argument "was designed to illustrate the lack of preparation and care the state put into the case." (St. Hab. Tr. at 120). While petitioner may disagree with this strategy, he has failed to show how it affected the outcome of his trial. There was overwhelming evidence that petitioner committed the murder, including the victim's dying declaration that "Gary did it" and testimony from two witnesses that petitioner admitted to the shooting. ( See SF-IV at 21, 138, 156-57). The location of the murder weapon simply was not an issue in the case. Nor has petitioner established that the prosecutor's rebuttal argument and the trial court's refusal to grant a mistrial were improper. Because defense counsel opened the door to the whereabouts of the murder weapon, the prosecutor was entitled to argue that petitioner may have been able to "get rid of the gun" before he was apprehended. Indeed, this appears to have been the case since the weapon was recovered from someone else months after the murder. This ground for relief is without merit and should be overruled.
Respondent contends that this claim is barred from federal habeas review because the state appellate court held that petitioner waived any error in connection with the prosecutor's jury argument by failing to make a contemporaneous objection trial. ( See Resp. Ans. at 10-11). Although the doctrine of waiver is an adequate and independent state ground for procedural default purposes, a federal habeas court may address a claim otherwise barred if the petitioner establishes "cause" for noncompliance with the procedural rule and "actual prejudice" resulting from the alleged constitutional violation. See Cook v. Lynaugh, 821 F.2d 1072, 1077 (5th Cir. 1987), citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986). Ineffective assistance of counsel may, in some instances, constitute adequate "cause" warranting federal habeas review notwithstanding a procedural default. Id. Moreover, petitioner is not barred from seeking habeas relief based on the conduct of his own attorney, as this issue was properly raised for the first time on collateral view in state court. Because all these claims are interrelated, the court will consider them on the merits.
C.
Petitioner further contends that the prosecutor used perjured testimony to obtain his conviction. At trial, Dallas Police Officer Thomas Stark testified that he asked the victim, Lafayette Dwayne Johnson, who shot him. (SF-IV at 20-21). As he lay dying, Johnson responded, "Gary did it." ( Id.). Stark then asked a bystander, Daniel Winchcombe, if he knew a man named Gary. According to Stark, Winchcombe identified petitioner and provided the police with his name and address. ( Id. at 48). However, Winchcombe testified that he gave petitioner's name and address to Crime Stoppers because he could not reach any of the officers working on the case. ( Id. at 71). Winchcombe also testified that petitioner and Gwenda Collingsworth attempted to purchase crack cocaine from him and Johnson the day before the murder. ( Id. at 58-60). As payment for the drugs, petitioner offered to trade a Tommy Hilfger outfit. When Johnson tried to examine the clothes, Winchcombe said that an altercation ensured wherein Collingsworth scratched Johnson and Johnson punched Collingsworth in the face. Petitioner then shouted to Johnson, "You're dead, you're a dead f___ n___, I'm going to shoot you." ( Id. at 64). However, in a written statement given to the police shortly after the murder, Winchcombe provided a slightly different version of the encounter between himself, Johnson, petitioner, and Collingsworth. ( See Pet. Mem. Br. at 17-20 Exh. 8). Most significantly, Winchcombe said that petitioner told Johnson, "You're f___ done." It was Collingsworth who stated, "You're dead. You're f___ dead." ( Id., Exh. 8). Based on these inconsistencies, petitioner maintains that Stark and Winchcombe lied at trial.
1.
The due process clause prohibits the use of perjured testimony to obtain a conviction. Giglio v. United States, 405 U.S. 1150, 1153, 92 S.Ct. 763, 766, 31 L.Ed.2d 1014 (1972); Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992). In order to establish a due process violation based on the use of perjured testimony, a habeas petitioner must prove that: (1) the testimony was false; (2) the prosecutor knew it was false; and (3) the evidence was material. Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.), cert. denied, 115 S.Ct. 671 (1994). Evidence is "material" only if there is a reasonable probability that it affected the outcome of the trial. United States v. Bagley, 471 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); Andrews v. Collins 21 F.3d 612, 626 (5th Cir. 1994), cert. denied, 115 S.Ct. 908 (1995).
2.
Petitioner has failed to prove that his due process rights were violated. There is absolutely no evidence that either Stark or Winchcombe lied at trial or that the prosecutor knew their testimony was false. Rather, petitioner has merely identified contradictory testimony and minor discrepancies in the record which are not material to the outcome of the case. Defense counsel had a full and fair opportunity to exploit these inconsistencies at trial and the jury was able to consider this evidence in evaluating the credibility of the state's witnesses. Without more, petitioner has failed to establish a constitutional violation that merits habeas relief. See United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1990) (contradictory testimony, standing alone, is not tantamount to perjury).
D.
In five grounds for relief, petitioner contends that he received ineffective assistance of counsel at trial and on appeal. Specifically, petitioner claims that trial counsel: (1) improperly elicited and failed to object to evidence of extraneous offenses; (2) did not request a limiting instruction regarding extraneous offenses; (3) failed to object to other inadmissible evidence; and (4) did not impeach two prosecution witnesses. Petitioner further argues that appellate counsel failed to adequately research and investigate the issues to be raised on appeal.
1.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). 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). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
Petitioner first argues that his attorney improperly elicited and failed to object to evidence regarding his prior drug use. At trial, Winchcombe testified that petitioner attempted to purchase crack cocaine from him and Johnson the day before the murder. (SF-IV at 58-60). Two other witnesses, Ann Petty and Eric Alfaro, said that petitioner occasionally used cocaine and frequented "smokehouses." ( Id. at 128, 153). This extraneous offense evidence was properly admissible to demonstrate motive and establish the nature of the relationship between petitioner and Johnson. See TEX. R. EVID. 404(b) (evidence of other crimes, wrongs or acts admissible to provide motive, opportunity, or intent). The state's theory of the case was that petitioner killed Johnson following an altercation related to a drug deal. Winchcombe was an eyewitness to events surrounding the initial meeting between petitioner and Johnson. Petty and Alfaro, who also used drugs, testified about statements made by petitioner implicating him in the murder. As a result, it was important for the jury to hear evidence regarding drug use. Counsel was not ineffective for failing to object to this evidence.
Alfaro explained that a "smokehouse" is a place where "people go to do their drugs, you know, just where they buy the drugs and go do their drugs and they just leave." (SF-IV at 153).
Nor did defense counsel elicit any extraneous offense evidence during trial. According to petitioner, counsel improperly questioned Dallas Police Detective Thomas Prentice about the facts surrounding an evading arrest charge. ( See SF-VI at 31). However, this questioning occurred in a hearing outside the presence of the jury after Prentice testified that petitioner had a bad reputation for being peaceful and law-abiding. ( Id. at 20). At no time did defense counsel elicit extraneous offense evidence in front of the jury.
Petitioner also criticizes his lawyer for failing to request a jury instruction prohibiting the consideration of any extraneous offense evidence unless the state proved beyond a reasonable doubt that petitioner committed the extraneous offense. In a sworn affidavit filed with the state habeas court, Allan Fishburn explained that "[a] limiting instruction was not requested because the strategy was to show that many other people had a motive to kill the deceased in the criminal community in which these people resided." (St. Hab. Tr. at 120). Indeed, Fishburn argued to the jury that Winchcombe, Petty, and Alfaro were not credible witnesses, in part, because of their criminal histories. ( See SF-V at 25-27). The state habeas court accepted Fishburn's explanation and found that he did not render ineffective assistance of counsel by failing to request a limiting instruction. (St. Hab. Tr. at 117). Petitioner offers no evidence, much less clear and convincing evidence, to rebut this finding.
Fishburn argued that Petty admitted to smoking crack cocaine, that Winchcombe was "a thief, a person who committed an aggravated assault on a public servant," and that Alfaro was a "burglar" and a "thief." (SF-V at 25-27).
Next, petitioner complains that defense counsel should have objected to the admission of Officer Stark's "whip-out" book. On direct examination, the prosecutor asked Stark if he made a notation in this book when Johnson made his dying declaration that "Gary did it." Defense counsel objected to this question as hearsay. The objection was overruled and Stark responded, "I wrote the name 'Gary' and circled it." The prosecutor then asked Stark to show the book to the jury. Once again, defense counsel objected and the trial court overruled the objection. Stark continued to testify about notes written in the book during the course of his investigation. ( See SF-IV at 23-24). This testimony was the subject of extensive cross-examination by defense counsel. ( Id. at 42-44). On redirect, the prosecutor offered the "whip-out" book into evidence without objection. ( Id. at 46). Contrary to petitioner's argument, defense counsel did object to testimony regarding this book on two different occasions. By the time the "whip-out" book was offered into evidence, its contents were already before the jury. Under these circumstances, it would have been illogical for counsel to object to the admission of the book itself.
Stark explained that a "whip-out" book "is a little notebook that officers carry with them to record their notes in order to make their reports." (SF-IV at 23.).
Petitioner further contends that defense counsel was ineffective for failing to impeach Stark and Winchcombe with their inconsistent statements. As previously discussed, these inconsistencies were not material and had no bearing on any issue in the case. Petitioner has failed to establish that the performance of his attorney was deficient in this regard or that he was prejudiced thereby. See Jones v. Cain, 227 F.3d 228, 320-31 (5th Cir. 2000) (rejecting ineffective assistance of counsel claim where alleged discrepancies in evidence "approach inanity").
Finally, petitioner argues that his appellate lawyer failed to challenge his conviction on the grounds of prosecutorial misconduct, the use of perjured testimony, and ineffective assistance of trial counsel. These claims have all been considered and rejected on the merits by this court. Consequently, there is no reason to believe they would have been successful on direct appeal.
F.
In his final two grounds for relief, petitioner complains that a transcript from a pretrial hearing held on September 3, 1999 was not included in the appellate record and that his appellate lawyer failed to object to this omission. The subject of the September 3 hearing was petitioner's request to discharge Fishburn as his court-appointed attorney for failing to subpoena surveillance videotapes from three different supermarkets. According to petitioner, these videotapes would have provided him with an alibi by showing that he was somewhere else at the time of the murder. Although the subpoenas were issued on September 10, 1999, just one month after Fishburn was appointed as substitute counsel, the videotapes had been recorded over by the time of trial. ( See St. App. Tr. at 109-11; SF-III at 30-31).
Respondent cleverly questions the viability of an alibi defense that would place petitioner at three different places at the same time. ( See Resp. Ans. at 18-19).
Petitioner has failed to demonstrate prejudice resulting from this missing hearing transcript. In fact, the court questions whether a transcript of this hearing even exists. A letter from the court reporter, which is attached as an exhibit to the habeas petition, states:
There was a very brief courtroom appearance on September 3rd, 1999 in which Mr. Scott wanted to fire his court appointed counsel. The judge basically told Mr. Scott if he wanted to hire an attorney of his own choosing he could, otherwise to stop abusing the court with his complaints. Mr. Scott has filed State Bar grievances against every lawyer he has had. This is not a part of the Pre-Trial, Voir Dire or Trial on the Merits that began on September 20th, 1999.
(Pet. Mem. Br., Exh. 11) (emphasis in original). Petitioner himself acknowledges that the trial judge "refused to allow Applicant to put this [hearing] on the record." ( Id. at 39-40). Of course, appellate counsel could not have been ineffective for failing to obtain a transcript that did not exist. Nor has petitioner shown that his appeal would have been successful had the hearing been transcribed and made part of the appellate record. These grounds are without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of petitioner's application for writ of habeas corpus in the above-styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).