Opinion
No. 3:02-CV-942-D
June 16, 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 October 27, 1998, Petitioner was found guilty of robbery in the Criminal District Court Number 4, Dallas County, Texas, cause number F-9849821. Petitioner was sentenced to 40 years imprisonment. On October 4, 1999, the Texas Fifth District Court of Appeals affirmed the conviction. Stewart v. State, 05-98-01840-CR (Tex.App. — Dallas 1999, pet. ref d). On May 10, 2000, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. Stewart v. State, PDR No. 00-302. On July 7, 2000, Petitioner filed a state petition for habeas relief. Ex parte Stewart, Application No. 48,136-03. On September 5, 2001, the Texas Court of Criminal Appeals denied the petition without written order. Id. at cover.
On May 6, 2002, Petitioner filed this petition for habeas relief. He argues:
(1) He received ineffective assistance of counsel because:
(a) counsel was unprepared and failed to investigate;
(b) counsel filed no pre-trial motions;
(c) counsel failed to call witnesses;
(d) counsel failed to follow through with Petitioner's Batson claims;
(2) He was denied his statutory ten-day preparation period;
(3) He was not given his ten-day continuance after the indictment was amended; and
Batson v. Kentucky, 476 U.S. 79 (1986).
(4) The jury selection was racially motivated.
On September 19, 2002, Respondent filed her answer. On October 25, 2002, Petitioner filed a reply. The Court now finds the petition should be denied.
IV. 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.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 was unprepared and failed to investigate; (2) counsel filed no pre-trial motions; (3) counsel failed to call witnesses; and (4) counsel failed to follow through with Petitioner's Batson claims.
To sustain a claim of ineffective assistance of counsel, Petitioner must meet the standards of Strickland v. Washington, 466 U.S, 668 (1984), which requires proof 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)).
(a) counsel was unprepared and failed to investigate
Petitioner argues his counsel was ineffective because he was unprepared and failed to 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).
In this case, Petitioner argues a further investigation would have established that a bus driver would have testified on his behalf. Petitioner claims the bus driver would have testified that Petitioner never had any intent to commit the robbery and that "it was all a mistake." (Brief p. 4). Petitioner has submitted no affidavit or other evidence that the bus driver would have provided favorable testimony. Additionally, Petitioner submitted no evidence that the bus driver would have testified at trial. See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (stating "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) (finding "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.
(b) counsel failed to file pre-trial motions and pursue Petitioner's Batson claims
Petitioner states his counsel was ineffective for failing to file pre-trial motions and for failing to pursue his Batson claims. Petitioner, however, failed to raise these ineffective assistance claims in his state habeas application or on direct appeal. The Court finds these claims are procedurally barred.
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows cause for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. Id.
In this case, Petitioner's claims that his counsel failed to file pre-trial motions and failed to pursue his Batson claims are procedurally barred for failure to present them to the Texas Court of Criminal Appeals either in a petition for discretionary review or a state writ. 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 his claims that his counsel failed to file pre-trial motions and failed to pursue his Batson claims 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)).
Petitioner argues his claims are not procedurally barred because he is not raising new claims. (Reply p. 2). Petitioner states his claims are incorporated into his previous ineffective assistance of counsel claims. ( Id.). To the extent that Petitioner is raising new claims that his counsel was ineffective for failing to file pre-trial motions and for failing to pursue his Batson claims, the Court finds these claims procedurally barred.
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 these claims 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 claims that his counsel failed to file pre-trial motions and failed to pursue his Batson claims.
3. Ten-day preparation period
Petitioner claims the trial court erred and his counsel was ineffective because he did not receive a ten-day continuance of the trial once he was appointed new counsel. In this case, the court appointed Lynn Richardson from the Public Defender's Office as Petitioner's counsel. Ms. Richardson was later transferred to another court and attorney Rick Magnis from the Public Defender's Office was appointed as Petitioner's counsel.
Under Texas law, "appointed counsel is entitled to ten days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or in open court." Tex. Code Crim.Proc. Art. 1.0501(e). (West 1998). Petitioner's claim that he did not receive ten days preparation time is based on state law and therefore does not state a claim for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law." (citations and internal quotations omitted)).
Further, Petitioner has not established that his counsel was appointed less than ten days prior to the trial date of October 27, 1998. Petitioner submits copies of the prosecution's motion to amend the indictment and the court's order amending the indictment. These documents are dated October 20, 1998, and October 21, 1998. The October 21, 1998, motion to amend the indictment states the prosecutor sent a copy of the motion to Mr. Magnis. The document establishing that Mr. Magnis was Petitioner's counsel on October 21, 1998, does not establish that Mr. Magnis was not appointed to Petitioner's case prior to that date.
Respondent submits an affidavit from Mr. Magnis in which Mr. Magnis states he was appointed to Petitioner's case more than ten days before trial. ( See Answer, Ex. A). In the absence of an evidentiary hearing, this Court cannot make independent credibility determinations. The Court therefore has not considered Mr. Magnis' affidavit. The Court finds Petitioner fails to carry his burden of proof on this claim and that an evidentiary hearing is unnecessary.
Additionally, if Petitioner is claiming it was trial error to not provide Petitioner with the ten-day preparation time, his claim fails. A federal habeas court may not grant relief on trial errors unless a petitioner shows the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). Petitioner has presented no evidence regarding how the lack of additional time had a substantial and injurious effect or influence on the jury's verdict. The Court therefore finds that trial error, if any, was harmless.
Finally, to the extent Petitioner is arguing that the lack of a 10-day preparation time constituted ineffective assistance of counsel, Petitioner's claim also fails. Petitioner has failed to show that his counsel was deficient and that there is a reasonable probability the outcome of the trial would have been different if his counsel had argued for a ten-day continuance. Petitioner makes no showing that the outcome would have been different if his counsel had additional time to prepare, or what additional preparation was needed. 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). Accordingly, this claim should be denied.
4. Ten-day continuance after amendment of the indictment
Petitioner argues the trial court erred and he received ineffective assistance of counsel because he did not receive a ten-day continuance once the prosecution amended the indictment. The state amended the indictment on October 20, 1998, to change the complainant's name from "James Hammer" to "James Hammers."
Texas law states:
After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.
Tex. Code Crim. Proc. Art. 28.10(a) (West 2002). Petitioner's claim that he was denied a 10-day continuance is based on state law and therefore does not state a claim for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law." (citations and internal quotations omitted)).
Further, if Petitioner is claiming it was trial error to not provide Petitioner with ten days from the amendment, his claim fails. A federal habeas court may not grant relief on trial errors unless a petitioner shows the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). Petitioner has presented no evidence regarding how the lack often days after the trial amendment had a substantial and injurious effect or influence on the jury's verdict. The Court therefore finds that trial error, if any, was harmless.
Finally, to the extent Petitioner is arguing that the lack of a 10-day continuance constituted ineffective assistance of counsel, Petitioner's claim also fails. Petitioner has failed to show that his counsel was deficient and that there is a reasonable probability the outcome of the trial would have been different if his counsel had argued for a ten-day continuance. Petitioner makes no showing that the outcome would have been different if his counsel had additional time to prepare, or what additional preparation was needed. 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). Accordingly, this claim should be denied.
5. Batson Claim
Petitioner argues the prosecution's use of its peremptory strikes was racially discriminatory in violation of Batson v. Kentucky, 476 U.S. 79 (1986). A proper Batson challenge has three elements. First, the defendant must raise an inference that the prosecutor excluded potential jurors solely on the basis of race. Id. at 96; United States v. Wallace, 32 F.3d 921, 925 (5th Cir. 1994). A defendant may satisfy this burden in a variety of ways, such as showing a pattern of strikes against minority jurors on the venire panel or statements made by the prosecutor during the voir dire examination. Batson, 476 U.S. at 96-97. Once the defendant makes a prima facie case, the burden shifts to the prosecution to articulate a race-neutral explanation for each of the challenged strikes. Id. at 97; Wallace, 32 F.3d at 925. This inquiry focuses on the facial validity of the proffered explanation. "Unless discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Purkett v. Elem, 514 U.S. 765, 768 (1995) (citations omitted); see also United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997). The trial court then determines whether the defendant has proven purposeful discrimination. Batson, 476 U.S. at 98; Wallace, 32 F.3d at 925.
When the record contains an explanation for the prosecutor's use of peremptory challenges, the reviewing court need only decide the propriety of the ultimate finding of discrimination. Perkins, 105 F.3d at 978; United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987). This finding is entitled to great deference because it largely turns on evaluation of the credibility or demeanor of the attorney who exercises the challenge. Hernandez v. New York, 500 U.S. 352, 364 (1991); United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993). In a federal habeas case, such a finding will not be disturbed "unless it constitutes an unreasonable determination of the facts in light of the evidence presented in the prior state court proceeding." 28 U.S.C. § 2254(d)(2).
In this case, Petitioner argues the prosecution unlawfully struck juror number 31. (Pet. Brief at pp. 9-12). Petitioner's counsel raised an objection to the strike. (Trial Trans. Vol. 2, p. 145). The prosecution stated it struck juror number 31, because he "chose to show up in all camouflage" clothing and there was no indication that the juror was a member of any armed services. ( Id. at p. 146). The trial court found the prosecutor's reasons to be race-neutral and allowed the prosecution's strikes. ( Id. at p. 147). On direct appeal, the state court found that Petitioner failed to rebut the prosecution's race-neutral reasons for striking juror number 31. ( Stewart v. State, Slip Op. No. 05-98-01840-CR at p. 3 (Tex.App.-Dallas 1999, pet. ref d). There is no question that wearing camouflage clothing is a facially race-neutral explanation for striking a prospective juror. Nevertheless, Petitioner argues the prosecution struck this juror based on his race. Petitioner offers no evidence that the state courts misapplied Batson to the facts of this case. His conclusory assertions, unsupported by any evidence or legal authority, are insufficient to merit habeas 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).
It is unclear whether Petitioner is challenging the prosecution's strikes of any other juror. To the extent Petitioner challenges the strikes against other jurors, these claims were not raised on direct appeal or in Petitioner's state habeas application. The claims would therefore be procedurally barred. See infra Section IV. 2(b).
Petitioner has not shown that the state court's denial of habeas relief is contrary to, or involved and unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Accordingly, the petition should 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.