Opinion
CIVIL ACTION NO. 3:00cv2141-G.
March 7, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Arthur Martin Styles ("Styles") is an inmate confined at the Pack Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Navasota, Texas. Respondent is the Director of TDCJ-ID.
Statement of the Case: Petitioner was charged with three counts of the felony offense of burglary in the Criminal District Court Number Two of Dallas County, Texas, cause numbers F-98-21058-TI, F-98-21059-TI, and F-98-21060-TI. Additionally, the State filed a motion to revoke probation in cause number F-8872602, in which he had been charged and convicted of the felony offense of burglary, based on the new burglary charges. He was found guilty after trial by the court, and on July 31, 1998, he was sentenced to twenty years imprisonment on the 1998 burglary charges Also on that date, his parole was revoked and he received punishment of ten years imprisonment.
Styles appealed his convictions and probation revocation. On May 26, 1999, the Fifth Court of Appeals of Texas affirmed the judgments of the trial court in a single, unpublished opinion. Styles v. State, Nos. 05-98-01383-CR, 05-98-01384-CR, 05-98-01385-CR, 05-98-01386-CR. He did not file a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals. He has filed one state application for writ of habeas corpus pursuant to art. 11.07 of the Texas Code of Criminal Procedure. Ex parte Styles, Appl. No. 45,006-01. On April 12, 2000, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing. Id. at cover.
The same appellate opinion was used for all four cases. References contained in this report are to No. 05-98-01383-CR.
Findings and Conclusions: In the present petition, Styles asserts he received ineffective assistance of counsel and the evidence was insufficient to support his convictions for burglary. Section 2254(d) provides the standard of review in Section 2254 cases:
Styles, in turn, challenges his probation revocation because it is based on the 1998 burglary convictions.
(d) An application for 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 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 the State court proceeding.
In Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1523 (2000), the Supreme Court explained the Section 2244(d)(1) standard:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Further, in review of a state prisoner's federal habeas petition, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
1. Ineffective Assistance of Counsel
Styles raises a number of claims of ineffective assistance of trial counsel. When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984). When considering the reasonableness of counsel's conduct, a court must indulge a strong presumption that it falls within the wide range of reasonable professional competence, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct at 2065. In determining whether prejudice has resulted from counsel's alleged deficient performance, the court must determine whether counsel's performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1993).
A court reviewing an ineffectiveness claim need not consider the two prongs of the Strickland test in any particular order, because a failure to establish either one defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
Petitioner first alleges his attorney, David Pickett, was ineffective because he failed to conduct an adequate pretrial investigation and did not file a pretrial discovery motion. Styles asserts his attorney did not visit the scenes of the alleged crimes and only visited with him at the jail for twenty minutes prior to the day of trial. In response to Petitioner's allegations in his state petition, his attorney filed an affidavit in the state proceedings. Pickett states, in pertinent part that:
After interviewing Mr. Styles, I hired an investigator to begin preparation for a jury trial. The investigator interviewed all witness' (sic) in the case . . .
I was fully prepared to go to trial on the cases and I knew what evidence the district attorney was going to present at trial. . . .
All the witness' (sic) were available and testified at the trial. . . .Exparte Styles, Appl. No. 45,006-01 at 38. Styles offers no explanation or evidence of how he was prejudiced by these alleged shortcomings. Pickett's affidavit, which was accepted by the state habeas court as truthful and accurate, establishes that he did conduct a pretrial investigation. Petitioner's mere conclusory accusations are not enough to outweigh the strong presumption that counsel's actions were reasonable. See United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
Next, Styles asserts his counsel did not interview potential defense witnesses. He does not offer any names or details of their alleged testimony. The Fifth Circuit has made it clear that a habeas petitioner must do more than merely suggest that favorable witnesses might have existed. See United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3534 (1984). Instead, Styles is required, at the very least, to present affidavits of witnesses reflecting what each person is competent to testify about and that such person was willing and available to testify at trial. See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985); Cockrell, 720 F.2d at 1427.
Petitioner also faults his counsel for his handling of two alibi witnesses, Paula Styles, his wife, and Bill Bing, his manager at work. He asserts that Bing would have testified at trial and would have established that he was at work and not at one of the houses at the time it was alleged to have been burglarized. Again, as with his general allegation about witnesses, Styles has failed to submit an affidavit from Bing outlining his testimony. Instead, he submitted an affidavit from Paula Styles, his wife, in which she avers that she received a letter from Bing which could provide an alibi for at least one of the burglaries. Addendum to Petition, Exhibit B. She also says that she delivered Bing's letter to Pickett before the trial date. Id.
Mrs. Styles's affidavit is problematic in a number of respects. First, it is hearsay. Second, it is conclusory at best: it offers little in the way of details, i.e., it does not specify the burglary for which Bing might have provided an alibi nor does it describe the specifics of Bing's alleged letter.
Although, as evidenced by the judge's decision at the conclusion of the non-jury trial, Mrs. Styles's testimony was not accepted as a viable alibi defense, the record reflects that Petitioner's attorney called her as a witness and elicited testimony from her that she was with her husband from the close of business Friday afternoon, March 13, 1998, to the time of his arrest on the morning of March 15, 1998. Petitioner has not shown that his counsel was ineffective for presenting the testimony of Paula Styles or in failing to call Bill Bing as a witness.
In the indictment, the burglaries were alleged to have taken place on or about March 15, 1998. The testimony at trial established that they occurred throughout the week preceding March 15.
Styles challenges his counsel's failure to file a pretrial suppression motion based on the allegedly illegal initial stop of him by Officer Snodgrass and the subsequent search of his house. Petitioner's wife consented to the search of the house after Officer Snodgrass arrested Styles after discovering stolen property both in the vehicle in which he found Styles and in his pockets. When the State offered the signed consent to search form in evidence, Pickett took Officer Snodgrass on voir dire examination to ask whether he had seen Paula Styles in the house at the time he approached it or prior to that date and if Jeff Lee owned the house. I RR 22. Pickett then objected to the consent form because Ms. Styles was not the owner and therefore she did not have authority to consent to the search. I RR 23. The State responded that Petitioner did not have standing to object, to which Pickett replied, "[w]hy in the world do we need a consent to search then?" Id. The trial court overruled the objection to the admissibility of the items seized from Styles's person and in the search of the house. Id.
Reporter's Record ("RR") is preceded by the volume number and followed by the page number. The Reporter's Record is the transcription of the trial testimony.
While counsel did not file a formal pretrial motion to suppress, he did raise and litigate the Fourth Amendment issue at the trial itself, which in substance constituted a suppression hearing. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial." Stone, 428 U.S. at 494, 96 S.Ct. at 3052. Styles had in fact litigated his Fourth Amendment claims when his attorney raised the issue in the trial court.
Finally, Petitioner alleges his counsel was ineffective because he did not present any mitigating evidence at the punishment phase. However, Styles fails to identify the evidence which should have been presented and how it would have helped him receive a "significantly less harsh" sentence. See e.g., Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). Mere conclusory accusations are not enough to outweigh the strong presumption that counsel's actions were reasonable. See United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
2. Insufficient Evidence
Styles also claims the evidence is insufficient to support his convictions. Although he presented an insufficiency of the evidence claim to the Fifth Court of Appeals, see Slip Op. No. 05-98-01383-CR, he did not present this claim in a petition for discretionary review. Subsequently it was raised in his art. 11.07 application. The trial court, after explaining that Styles had raised this same claim in his appeal and it was rejected, stated that he had not presented any new evidence or citations of authority warranting reconsideration. Ex parte Styles, Appl. No. 45,006-01 at 35. Without such evidence or authority, the habeas court was bound by the appellate court's previous ruling on the issue. Id.
In Texas, a sufficiency of the evidence claim may only be raised on direct appeal and is not cognizable in a subsequently filed art. 11.07 application. See Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986). Further, in order to exhaust state court remedies, a petitioner must present a sufficiency of the evidence claim to the Texas Court of Criminal Appeals by filing a PDR in the course of his direct appeal. See e.g., Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994) (en banc); see also West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847 (1997). Since Styles did not raise the claim in a PDR and since he could not raise it in his art. 11.07 application because it was not cognizable in such an application, the claim is procedurally barred from federal habeas review.
Even if Petitioner's sufficiency of the evidence claim was not procedurally barred, Styles fares no better on the merits. In reviewing a claim for insufficiency of the evidence, a court determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In making this determination, a court refers to the substantive elements of the criminal offense as defined by state law. Id. at 324 n. 16, 99 S.Ct. at 2792 n. 16. The elements for burglary of a habitation are found in TEX. PENAL CODE § 30.02 which provides in pertinent part that a person commits burglary if he enters a habitation without the effective consent of the owner with intent to commit a felony, theft, or any assault; or he enters a habitation and commits or attempts to commit a felony, theft, or an assault. TEX. PENAL CODE § 30.02(a)(1) and (3).
The Fifth Court of Appeals summarized the facts adduced at trial as follows:
Keith Snodgrass, a Farmers Branch police officer, stopped appellant outside his home. Appellant was carrying a scarf which concealed, among other things, a driver's license and credit cards that had been taken in a recent burglary. Additionally, appellant had stolen checks in his pocket. Appellant told Snodgrass that there was stolen property in his home because a burglary ring operated out of the home, but others had brought the property into the house.
Three of appellant's neighbors, Julie Lynn Stevenson, Andrea Zorn, and Guy Arrington, had their homes broken into a few days earlier. All three complainants lived on the same street as appellant. The police found items stolen from each complainants' home in the home appellant was renting. All three houses had muddy footprints leading to and from the areas where property was taken. Muddy tennis shoes were found in appellant's home. Appellant admitted they were his shoes, but someone else must have worn them. The officer also found a camera that was taken two days earlier from one of the neighbors. When the film was developed, pictures of both appellant and his wife were on the roll of film. Appellant's wife was wearing stolen property in the photographs. The photographs themselves were dated after the burglary occurred.
Appellant told the officer where to find additional stolen property and that others were coming to pick up the property. Other officers followed appellant's leads and arrested another person.
At trial, appellant testified he did not know any of the items in his home were stolen. He also testified that the muddy shoes were not his. No one saw appellant enter or leave any of the complainants' homes and no physical evidence, other than muddy footprints, in the burglarized homes linked the crimes to appellant.Styles v. State, Slip Op. No. 05-98-01386-CR at 2-3.
In his present petition, Styles claims the evidence was insufficient to support his conviction because he had a reasonable explanation for his possession of the stolen property. He testified that a burglary ring stored stolen property at his home, which he rented from another man. Styles claimed that he was afraid of these people. He told the police when they arrested him that someone was on his way to the house to pick up some property. As noted by the Fifth Court of Appeals, officers arrested another person based on the information which he provided.
Styles raised this same sufficiency claim in his direct appeal. The Fifth Court of Appeals considered the argument:
Independent evidence of a burglary together with unexplained possession of recently stolen goods may constitute sufficient evidence of guilt. Buchanan v. State, 780 S.W.2d 467, 469 (Tex.App. — Dallas 1989, pet. ref'd). However, to infer guilt from possession of property taken in a burglary, the possession must be personal, recent, unexplained, and involve a distinct and conscious assertion of a right to the property. See Jackson v. State, 645 S.W.2d 303, 306 (Tex.Crim.App. 1983); Buchanan, 780 S.W.2d at 469.
If the accused when first challenged offers a reasonable explanation for his possession of stolen property, the necessity of showing the explanation is false is greater than if the explanation is offered at a later time. Garza v. State, 841 S.W.2d 19, 22 (Tex.App.-Dallas 1992, no pet.). Whether the explanation is reasonable is a question of fact and the factfinder is not bound to accept a defendant's explanation. Id. The factfinder weighs the witnesses' credibility and their testimony's weight. TEX. CODE CRIM. P. art. 38.04 (Vernon 1979); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 865 (1985); Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd).
Viewing the evidence in the light most favorable to the trial court's judgment, we conclude any rational factfinder could have found beyond a reasonable doubt that appellant committed the burglaries. See Jackson v. Virginia, 443 U.S. 307, 309 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993), cert. denied, 511 U.S. 1100 (1994). Viewing all of the evidence, we conclude the trial court's finding that appellant committed the burglaries was not so against the overwhelming weight of the evidence as to be clearly wrong or unjust. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). The evidence is legally and factually sufficient to support the burglary conviction.Styles v. State, Slip Op. No. 05-98-01386-CR at 3-4.
The trial judge heard the testimony of all of the witnesses, including Styles, and had the opportunity to weigh his explanation against the evidence presented. In considering this ground, the Fifth Court of Appeals-in accordance with Jackson v. Virginia — viewed the evidence in the light most favorable to the prosecution and consistent with the decisions rendered by the trial court on the issue of guilt/innocence.
Petitioner has not shown that the State unreasonably applied the law in his case, nor has he offered clear and convincing evidence that the trial court and the intermediate appellate court made the wrong factual determinations regarding his explanation of his possession of the stolen property. See 28 U.S.C. § 2254(e)(1). The evidence was factually and legally sufficient to support his convictions.
RECOMMENDATION:
For the foregoing reasons it is recommended that the § 2254 petition for habeas corpus relief be DENIED.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.