Opinion
NO. 3-04-CV-0496-D.
July 15, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Hubert Warren, 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 aggravated assault on a public servant and sentenced to 60 years confinement. His conviction and sentence were affirmed on direct appeal. Warren v. State, 98 S.W.3d 739 (Tex.App.-Waco 2003, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Warren, No. 52,260-04 (Tex.Crim.App. Apr. 16, 2003). Petitioner then filed this action in federal court.
II.
Petitioner raises three broad issues in four grounds for relief. Succinctly stated, petitioner contends that: (1) the one-year delay between his arrest and indictment violated his right to due process; (2) his conviction and sentence are invalid because the state improperly amended the indictment eight days before trial; and (3) he received ineffective assistance of counsel at trial and on appeal.
The court sua sponte questions whether petitioner has exhausted his state remedies. Although petitioner raised all these claims in an application for state post-conviction relief, the trial court recommended that the writ be denied because petitioner's conviction was still pending on direct appeal. ( See St. Hab. Tr. at 215). That recommendation was adopted by the Texas Court of Criminal Appeals. Ex parte Warren, No. 52,260-04 at cover. However, respondent has not moved to dismiss this case for failure to satisfy the exhaustion requirement. Moreover, "[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Because the court determines that petitioner is not entitled to habeas relief in any event, the court will consider his claims on the merits.
A.
Petitioner first complains of the one-year delay between his arrest and indictment. A claim of pre-indictment delay is examined under the due process clause of the Fifth Amendment to the United States Constitution. See United States v. Lucien, 61 F.3d 366, 370 (5th Cir. 1995), citing United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994), cert. denied, 115 S.Ct. 1432 (1995). In order to establish a due process violation, petitioner must prove that the government intentionally delayed the indictment to gain a tactical advantage and that he was prejudiced thereby. See Byrd, 31 F.3d at 1339-1340, citing United States v. Beszborn, 21 F.3d 62, 66 (5th Cir.), cert. denied, 115 S.Ct. 330 (1994).The record shows that petitioner was arrested on September 23, 1999, but was not indicted until September 6, 2000. However, petitioner fails to allege, much less prove, that this delay was intentional or prejudiced his ability to present a defense. Moreover, petitioner never demanded a speedy trial and did not complain of any pre-indictment delay until April 24, 2001 — more than four months after he was convicted by a jury. ( See St. Hab. Tr. at 89). Under these circumstances, there is no due process violation. See Byrd, 31 F.3d at 1340 (rejecting claim of improper pre-indictment delay because defendant did not meet required burden of proof).
B.
In two related grounds, petitioner contends that his conviction and sentence are invalid because the state improperly amended the indictment eight days before trial. The original indictment, filed on September 6, 2000, contained a single enhancement paragraph alleging that:
[P]rior to the aforesaid offense the defendant was previously finally convicted of two felony offenses; and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final.
(St. App. Tr. at 4). On December 7, 2000, defense counsel filed a motion to quash the indictment on the ground that this paragraph failed to provide sufficient notice of the prior offenses that would be used for enhancement purposes. ( Id. at 47). The next day, the state filed a motion to amend the indictment with the following enhancement allegations:
And it is further presented in and to said Court that, prior to the commission of the aforesaid offense (hereafter styled the primary offense), on the 26th day of October, 1988, in cause number 509958 in the 228th District Court of Harris County, Texas, the defendant was convicted of the felony offense of Theft of an Automobile;
And it is further presented in and to said Court that, prior to the commission of the primary offense, on the 26th day of October, 1988, in cause number 509846 in the 228th District Court of Harris County, Texas, the defendant was convicted of the felony offense of Burglary of a Building;
And it is further presented in and to said Court that, prior to the commission of the primary offense, on the 28th day of December, 1988, in cause number 29026A in the 297th District Court of Tarrant County, Texas, the defendant was convicted of the felony offense of Burglary of a Motor Vehicle;
And it is further presented in and to said Court that, prior to the commission of the primary offense, and after the convictions in each of the cause numbers 509958, 509846 and 29026A were final, the defendant committed the felony offense of Theft of an Automobile and was convicted on the 25th day of October, 1990, in cause number 568128 in the 263rd District Court of Harris County, Texas.
( Id. at 54). The motion was granted by order dated December 11, 2000, and trial commenced eight days later on December 19, 2000. ( Id. at 2).
Article 28.10 of the Texas Code of Criminal Procedure provides, in pertinent part:
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.ANN. art. 28.10(a) (Vernon Supp. 2004). Petitioner apparently believes that the state violated this statute because it amended the indictment just eight days before trial. This claim fails for two reasons. First, petitioner has failed to allege a federal constitutional violation. Although the statute contemplates giving a defendant at least 10 days to respond to an amended indictment, this right arises solely under Texas law. There is no corresponding right under the federal constitution. See Stewart v. Cockrell, 2003 WL 21436468 at *5 (N.D. Tex. Jun. 17, 2003), rec. adopted, 2003 WL 21685905 (N.D. Tex. Jul. 15, 2003). Moreover, even if petitioner could allege a federal constitutional violation, he is not entitled to habeas relief unless he proves that the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (citation omitted). Petitioner has failed to show how he was harmed by the fact that his trial commenced eight days, rather than 10 days, after the judge signed the order allowing the state to amend the indictment. These grounds for relief are without merit and should be overruled.
C.
Finally, petitioner contends that his legal representation was constitutionally deficient because: (1) trial counsel failed to object to the untimely amendment of the indictment or the preindictment delay; and (2) appellate counsel failed to challenge the amended indictment on direct 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 must first 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).
2.
Petitioner maintains that his attorney should have objected when the state amended the indictment just eight days before trial. At a pretrial hearing held on December 8, 2000, the trial court instructed the prosecutor to file a motion to amend the indictment "before 5:00" that day. (SF-V at 14). The judge then inquired whether defense counsel could be ready for trial on the following Monday, December 18, 2000:
THE COURT: So my second question is assuming the State gets their motion to amend filed today, is there any reason we couldn't pick the jury Monday on this case and begin it the next week?
[DEFENSE COUNSEL]: Picking the jury — as long as I knew — obviously, when I get the two actual alleged prior convictions, then I will research them and find out if they were properly — if he was properly sentenced to those.
It may — I guess if they were improperly pled or something was wrong, it would change my voir dire.
THE COURT: Well, if they're improperly pled, then that doesn't keep you from filing another motion to quash. If there's no evidence to support them, well, I guess you're in like flint then; get them found not true either as a matter of law or by the jury. Right, wrong?
[DEFENSE COUNSEL]: I guess I can't right now imagine any — I assume there are things —
THE COURT: The reason I'm saying is as far as — except for the pleadings — and the pleadings are the one thing and the proof is another thing — you'd have a week or so to look behind those, right?
[DEFENSE COUNSEL]: Right.
THE COURT: Because the case wouldn't start until the following week.
[DEFENSE COUNSEL]: I could pick a jury Monday.
THE COURT: Okay. All right. That provided — because I'm just looking at things because I have to pick a jury Monday and have them come back the following week which would look like it would be a Tuesday provide you get it filed today.
(SF-V at 12-13) (emphasis added). As instructed, the prosecutor filed his motion and faxed the proposed amended indictment to defense counsel on December 8, 2000. ( See St. App. Tr. at 54-55). Trial commenced on December 19, 2000. Although the judge did not sign the order granting the state's motion to amend until December 11, 2000, defense counsel had notice of the amendment more than 10 days before trial. Any objection by defense counsel for failure to comply with the technical requirements of article 28.10 would have been futile.
Nor has petitioner shown that his attorney was ineffective for failing to object to the one-year delay between his arrest and indictment. Without proof that this delay was intentional or prejudiced his ability to present a defense, petitioner cannot satisfy the prejudice prong of the Strickland analysis.
3.
Petitioner also criticizes his appellate lawyer for failing to challenge the amended indictment on direct appeal. "The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989); see also Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 3313-14, 77 L.Ed.2d 987 (1983). Instead, counsel is obligated only to raise and brief those issues that are believed to have the best chance of success. See Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003), cert. denied, 124 S.Ct. 1156 (2004); United States v. Williamson, 183 F.3d 458, 462-63 (5th Cir. 1999). In order to prove ineffective assistance of appellate counsel, a petitioner must show that the decision not to raise an issue on appeal fell below an objective standard of reasonableness. United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000), citing Strickland, 104 S.Ct. at 2064. This reasonableness standard requires counsel "to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful." Id., quoting Williamson, 183 F.3d at 462-63.
Appellate counsel raised four nonfrivolous issues in a well-researched brief. Although counsel did not argue that the amended indictment was untimely, that claim has been rejected by this court. There is no reason to believe that petitioner's conviction would have been reversed had counsel appealed on that ground. His unsupported and conclusory assertions do not merit federal habeas relief. See Saunders v. Cockrell, 2002 WL 31156719 at *7 (N.D. Tex. Sept. 24, 2002), citing Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000).
Counsel focused his appeal on the sufficiency of the evidence and the failure to instruct the jury on the lesser-included offense of evading arrest. Although petitioner filed a pro se brief challenging the amended indictment, the appellate court declined to address that issue. See Warren, 98 S.W.3d at 741.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.