Opinion
No. 3-04-CV-0855-R.
August 18, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Baron Eugene Scott, by and through his counsel of record, 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 pled nolo contendere to unlawfully carrying a handgun. Punishment was assessed at 180 days in jail, probated for 12 months, and a $100 fine. His conviction and sentence were affirmed on direct appeal. Scott v. State, 2003 WL 21384652 (Tex.App.-Dallas, Jun. 17, 2003, pet. ref'd). Petitioner then filed this action in federal court.
II.
In two grounds for relief, petitioner contends that section 46.02 of the Texas Penal Code infringes on his right to keep and bear arms under the Second Amendment to the United States Constitution as interpreted by the Fifth Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 122 S.Ct. 2362 (2002).
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). Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may grant habeas relief only if: (1) the state court decision 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) the state court decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2). 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] on a question of law or if the state court decides a case differently than the 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 Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. See also Wiggins v. Smith, 539 U.S. 510, ___, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins, 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous — the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
B.
Petitioner was arrested for unlawfully carrying a loaded .25 caliber semi-automatic handgun as he stood outside his apartment complex. ( See Resp. Exh. 1). Pursuant to a plea bargain, petitioner pled nolo contendere to violating section 46.02 of the Texas Penal Code, a Class A misdemeanor offense. ( See id., Exh. 5). This statute prohibits an individual from "intentionally, knowingly, or recklessly carr[ying] on or about his person a handgun, illegal knife, or club." TEX. PENAL CODE ANN. § 46.02(a) (Vernon 2003). Although the provisions of section 46.02 do not apply to a person who carries a handgun on his own premises or premises under his control, see id. § 46.15(b)(2), there is no affirmative defense available for carrying a weapon in the common area of an apartment complex. Petitioner appealed his conviction on the grounds that section 46.02 violates the Second Amendment and, alternatively, is unconstitutional for failing to provide an affirmative defense on the facts of this case. Relying on established Supreme Court and Texas precedent, which do not recognize an individual right to keep and bear arms unrelated to a regulated militia, the court of appeals court rejected petitioner's constitutional arguments and affirmed his conviction. Scott, 2003 WL 21384652 at *1, citing See United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939); see also Moosani v. State, 914 S.W.2d 569 (Tex.Crim.App. 1995).
In the instant case, as on direct appeal, petitioner acknowledges that his request for relief is contrary to Miller and its progeny. ( See Pet. Br. at 6). Nevertheless, petitioner asks this court to re-examine those authorities in light of the Fifth Circuit's recent decision in Emerson. Whatever significance Emerson may have in the evolving arena of Second Amendment jurisprudence, petitioner may obtain federal habeas relief with respect to his conviction only if the decision of the state appellate court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (emphasis added). Petitioner has failed to show that the state court decision, which relies on Miller, either is contrary to or unreasonably applies Supreme Court authority. Consequently, federal habeas relief is not proper.
In Emerson, the Fifth Circuit held that "the Second Amendment protects the rights of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia." Emerson, 270 F.3d at 264.
RECOMMENDATION
Petitioner's application for a writ of habeas corpus should be denied.