Smith v. Dretke

Full title: CARLOS BERNARD SMITH, PETITIONER, v. DOUGLAS DRETKE, DIRECTOR, TEXAS…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Aug 9, 2004

Civil Action No. 4:04-CV-0186-Y (N.D. Tex. Aug. 9, 2004)

Opinion

Civil Action No. 4:04-CV-0186-Y.

August 9, 2004

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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 are as follows:

I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.

B. PARTIES

Petitioner Carlos Bernard Smith, TDCJ-ID #1085975, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Snyder, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Institutional Division.

C. FACTUAL AND PROCEDURAL HISTORY

In December 2000, Smith was charged by indictment in state court with possession of cocaine of one gram or more but less than four grams. (Trial Court Clerk's R. at 3.) The indictment also included enhancement and habitual offender notices alleging two prior felony convictions. ( Id.) On February 5, 2002, a jury found Smith guilty of the charged offense and true to the enhancement and habitual offender allegations and assessed his punishment at thirty-five years' imprisonment. ( Id. at 60.) Smith appealed his conviction, but the Second District Court of Appeals of Texas affirmed the trial court's judgment in an unpublished opinion on March 6, 2003. Smith v. Texas, No. 2-02-115-CR, slip op. (Tex.App.-Fort Worth Mar. 6, 2003). Smith did not timely pursue further direct review.¹ He did, however, raise the issues presented in a state application for habeas corpus relief, which was denied without written order by the Texas Court of Criminal Appeals on the findings of the trial court on February 11, 2004. Ex parte Smith, Application No. 57,920-01. Smith filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Lubbock Division, and the action was transferred to the Fort Worth Division by order dated March 11, 2004. Dretke has filed an answer with documentary exhibits, to which Smith has not filed a reply.

The factual background of this case as set forth by the Second District Court of Appeals is as follows:

On May 31, 2001, Fort Worth police executed a search warrant at 5713 Farnsworth. Before the officers executing the search warrant arrived at the house, the SWAT team arrived. The SWAT team officers made [Smith] lie down on his stomach and handcuffed him.

Officer Kussnick, a narcotics officer, arrived at the house about a minute and thirty seconds after the SWAT team. Officer Kussnick approached [Smith] to pat him down for weapons. Before speaking to [Smith], Officer Kussnick noticed a blue baggie sticking out of [Smith's] jeans pocket. Officer Kussnick then asked [Smith] if he had any weapons, and [Smith] said, "[N]ope, all I got is this dope." Officer Kussnick reached into [Smith's] pocket and removed the baggie, which was later confirmed to contain cocaine.

Smith v. Texas, No. 02-02-115-CR, slip op. at 2.

D. ISSUES

Smith raises three grounds for relief:

(1) He received ineffective assistance of counsel;

(2) The evidence obtained was inadmissible; and

(3) The trial judge denied him effective assistance of counsel. (Petition at 7-8.)

E. RULE 5 STATEMENT

Dretke believes that Smith has exhausted his state remedies as to the issues presented by presenting the issues to the Texas Court of Criminal Appeals in his state habeas application. (Resp't Answer at 3.)

F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief

This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Under 28 U.S.C. § 2254(d), a 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 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 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, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5^th Cir. 2000). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.

Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5^th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5^th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). In such a situation, a federal court assumes that the state court applied the proper "clearly established federal law" and then determines whether its decision was "contrary to" or "an objectively unreasonable application" of that law. Schartzle v. Cockrell, 343 F.3d 440, 443 (5^th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5^th Cir. 2002).

2. Analysis

A. Ineffective Assistance of Counsel

Under his first and third grounds, Smith complains that he received ineffective assistance of trial counsel because counsel failed to object to the introduction of the cocaine at trial and that the trial judge denied him effective assistance of counsel by failing to inquire into his dissatisfaction with counsel. (Petition at 7.)

To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688 (1984). A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Where, as here, a petitioner's ineffective assistance claim has been reviewed on the merits under the Strickland standard and denied by the state's highest court, federal habeas relief will be granted only if the state court's decision was contrary to or involved an unreasonable application of Strickland, or if the state court's decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5^th Cir. 2003), cert. denied, 124 S. Ct. 2160 (2004); Haynes v. Cain, 298 F.3d 375, 379-82 (5^th Cir.), cert. denied, 537 U.S. 1072 (2002). Under this standard, the state court's application of Strickland must be shown to be not only erroneous, but objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4 (2003).

After holding a hearing by affidavit on Smith's claim, the state trial court entered findings of fact refuting Smith's allegation of ineffective assistance. (State Habeas R. at 38-43.) Specifically, the court found that counsel filed a motion to suppress the cocaine found in Smith's pocket and that counsel asked the jury to disregard the evidence if they felt it was a product of an unlawful search and seizure despite the fact that the motion to suppress was denied. ( Id. at 41.) Based on its findings, the trial court concluded that Smith received effective assistance of counsel, and it recommended that habeas relief be denied. ( Id. at 41-43.) In turn, the Texas Court of Criminal Appeals denied relief based upon the trial court's findings. Ex parte Smith, No. 57,920-01, at cover.

In this proceeding, Smith makes no reference to the state court findings and makes no effort to rebut the presumptive correctness of the findings. 28 U.S.C. § 2254(e)(1). Nor does an independent review of the state court records reveal clear and convincing evidence that would rebut the presumption of correctness. The record shows counsel filed a motion to suppress the evidence, that a pretrial hearing was held on the motion, and that the trial court denied the motion after hearing testimony. (Trial Court Clerk's R. at 42; 3 Reporter's R. at 8-32; State Habeas R. at 39.) As a matter of state law, this was sufficient to preserve error, if any, as to the complaint raised in the trial court. See TEX. R. APP. P. 33.1(a). Smith seems to imply in his memorandum filed in the state habeas proceeding that counsel could or should have objected to admission of the evidence on additional or different Fourth Amendment grounds for the purposes of preserving an alternative claim for review. (State Habeas R. at 14-18.) However, strategic choices made by counsel after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Strickland, 466 U.S. at 690. The state trial court concluded that counsel's suppression motion was premised on Smith's version of the events at the time and was supported by Smith's sworn testimony at the suppression hearing and at trial. ( Id. at 41.) It further concluded that Smith's alternative Fourth Amendment claim "directly conflicts" with his earlier claim. ( Id.)

In his third ground, Smith contends the trial court denied him ineffective assistance of counsel by refusing to inquire into his dissatisfaction with his trial counsel. (Petition at 7.) The record reflects that Smith filed a "Declaration of Conflict Between Attorney and Client" before trial, wherein he moved for substitution of counsel, alleging that (1) counsel failed to file requested motions, (2) counsel showed no interest in his case and only sought plea bargaining, (3) counsel failed to meet with him and/or acquaint himself with the facts of the case, and (4) there was a total breakdown of communications between the two. (State Habeas R. at 33.) The record does not reflect, however, that Smith presented the motion to the trial court, requested a hearing on the motion, or expressed any dissatisfaction with counsel during trial. Furthermore, Smith's assertions are vague and unsupported by any evidence regarding his claim of dissatisfaction. He does not assert any specific motions that he requested counsel file on his behalf or specific instances of conflict of interest, breakdown of communication, or inadequate representation. See United States v. Dilworth, 524 F.2d 470, 472-73 (5^th Cir. 1975); United States v. Young, 482 F.2d 993, 995-96 (5^th Cir. 1973). As such, Smith has not demonstrated a denial of his Sixth Amendment right.

B. Illegally Obtained Evidence

Under his second ground, Smith contends the evidence used against him was the product of an unlawful arrest, which rendered his consent to search invalid. (Petition at 7.) Where, as here, a state has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search and seizure. Stone v. Powell, 428 U.S. 465, 489-95 (1976). Smith's trial counsel filed a motion to suppress, and a pretrial hearing was held on the motion. (Trial Court Clerk's R. at 42; 3 Reporter's R. at 8-32.) Smith also raised an alternative Fourth Amendment claim in his state writ application. (State Habeas R. at 7.) In each instance, the state courts considered and rejected his arguments. Thus, Smith received a full and fair chance to litigate his claims in the state courts, and Stone bars relitigation of the issue in federal court. See Janecka v. Dretke, 301 F.3d 316, 320 (5^th Cir. 2002), cert. denied, 537 U.S. 1196 (2003).

C. Summary

In summary, Smith is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that he is not entitled to relief does not appear to be contrary to or involve an unreasonable application of clearly established federal law or based on unreasonable determinations of fact in light of the evidence presented in the state court proceedings.

II. RECOMMENDATION

Based on the foregoing, Smith's petition for writ of habeas corpus should be denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 30, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 30, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.