Opinion
No. 3:01-CV-1082-H
December 10, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : On December 10, 1997, a jury convicted Petitioner of aggravated sexual assault. R.R. vol. 3 at 192. On December 11, 1997, the trial judge sentenced him to life imprisonment. R.R. vol. 4 at 37. The Court of Appeals, Fifth District of Texas at Dallas, affirmed Petitioner's conviction on December 2, 1999. Wilson v. Texas, 15 S.W.3d 544 (Tex.App.-Dallas Dec. 2, 1999, pet. ref'd). On February 23, 2001, he filed a state application for writ of habeas corpus. See S.H. Tr. at 2. The Texas Court of Criminal Appeals denied the application on April 25, 2001, without a hearing and without written order on findings of the trial court. Ex parte Wilson, No. 49,082-01, slip op. at 1 (Tex.Crim.App. Apr. 25, 2001).
"R.R." refers to the Reporters Record.
"S.H. Tr." denotes the state habeas records attached to Ex parte Wilson, No. 49, 082-01, slip op. (Tex.Crim.App. Apr. 25, 2001).
Petitioner filed the instant federal writ of habeas corpus on June 4, 2001. (Pet. at 9.) Respondent filed an answer on September 7, 2001. ( See Answer at 1.)
Under the prison mailbox rule, a federal habeas petition is deemed filed when the prisoner delivers the petition to prison authorities for mailing to the court. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). The record does not reflect when Petitioner tendered his petition to the prison authorities for mailing, but it was "filed" sometime between June 4, 2001, when he signed the petition, and June 7, 2001, when this Court received it. See id. For purposes of this petition, the Court uses the earlier date as the date of filing.
D. Substantive Issues : Petitioner raises two primary bases for habeas relief in the instant federal petition: (1) ineffective assistance of counsel and (2) insufficiency of the evidence to support an unadjudicated extraneous offence introduced at the punishment phase. (Pet. at 7, 7-1A-18B.)
E. Exhaustion : Respondent does not contest that Petitioner has sufficiently exhausted his state remedies with respect to the claims raised in the instant federal petition.
II. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because Petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
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 the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of Petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The court of appeals also affirmed Petitioner's conviction on the merits. See Wilson, 15 S.W.3d 544. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law, within the meaning of § 2254(d)(1), "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, 412-13(2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if 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." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard
To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, Petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
In determining whether a petitioner established that counsel's performance was constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
In determining whether a petitioner established prejudice, courts consider whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. Furthermore, a petitioner must "affirmatively prove prejudice." Id. at 693. The second prong of Strickland may not be satisfied with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). B. Guilt-innocence phase
1. Failure to strike prospective juror during voir dire
Petitioner contends that he did not receive effective assistance of counsel during voir dire because his attorney failed to challenge a prospective juror "who made blatantly prejudicial remarks and ended up the foreperson of the jury." (Pet. at 7-1B.) An "attorney's actions during voir dire are considered to be a matter of trial strategy. A decision regarding trial tactics cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be 'so ill chosen that it permeates the entire trial with obvious unfairness.'" league v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).
In this case, the allegedly biased prospective juror stated that his six-year-old niece had been sexually abused by her stepfather and that "we've really been after it." R.R. vol. 1 at 150. When asked if he could set aside that incident and be fair and impartial, the prospective juror nodded his head. Id. Earlier in the defense's voir dire, the following exchange occurred:
[Prospective Juror]: Just an observation, it may be totally inappropriate. Something that I'm serious about in relation to what you said there is should the D.A. pursue — just from my observation here, you know, the defense has two attorneys with them, the prosecution one, and my observation is that he's considerably less experienced than you are.
[Defense Counsel]: I don't know why you'd say that.
[Prospective Juror]: But that's personal opinion. I'm just wondering is — is the prosecution only half the manpower and everything —
[The Court]: Oh, Mary Miller will be the lead counsel. She will be back. She will —
[Prospective Juror]: But she hasn't been here for all of this. And that was just a question that I had.
[Prospective Juror]: . . . [M]aybe I watched Perry Mason too much or something. But I understand that jury selection is one of the most very important things. There are — some cases, they even hire professional people in that area and that's what you're doing now is selecting jurors. Your side of this contest involves two people, including the defendant —
[Defense Counsel]: Right.
[Prospective Juror]: — whereas the prosecution has one.
[Defense Counsel]: Right.
[Prospective Juror]: And if three heads aren't better than one in this business, it's only that point. So you've got one person observing there, and you guys have three, so that was my point.
[Defense Counsel]: Yeah.
[Prospective Juror]: I'm not saying anything other than that.
[Defense Counsel]: No, I understand.
[Prospective Juror]: I hope that's true.
[Defense Counsel]: Don't worry about me, Mr. McCoy.
[Prospective Juror]: With the crime situation the way it is, the kind of crimes, I'm very worried about it. If this is what the prosecution does in preparing the [sic] prosecute a potential criminal, you better bet I'm concerned about it and you better get concerned about it.
[Defense Counsel]: I — yes, sir.
[Prospective Juror]: I served on a trial — on a jury where there was evidence presented by the prosecution, and I witnessed the credibility of that eyewitness was a big issue, but because the defense didn't give us any — any other avenues to consider, or at least that was my feeling about it, then the — then we had to reach a guilty verdict.
[Defense Counsel]: All right. Because the defense didn't present you any other reasonable alternatives or hypotheses, you didn't have anything to weigh it against?
[Prospective Juror]: Right.
R.R. vol. 1 at 110-11, 117-118. Later, after being advised that the lead prosecutor had returned to the courtroom, the prospective juror stated, "Then we have a chance here." Id. at 150.
The Court of Appeals for the Fifth District of Texas at Dallas determined that the above statements showed that "he was critical of the State's apparent lack of attention to the jury selection process" and that his "statements about his previous jury service suggest he would have considered acquitting the defendant if the defense had provided a ground for him to do so." Wilson, 15 S.W.2d at 552. Even if the statements were indicative of bias, Petitioner has failed to show that the failure to strike this juror from the panel permeated the entire trial with obvious unfairness. See Teague, 60 F.3d at 1172. Additionally, he has presented no evidence that, but for his attorney's failure to strike this juror, the result of the proceedings would have been different. See Strickland, 466 U.S. at 689.
The state appellate court considered petitioner's claim of ineffective assistance during voir dire due to the failure to strike a prospective juror on the merits. Wilson, 15 S.W.3d at 550-52. Thus, the AEDPA standards in 28 U.S.C. § 2254(d) apply. Because the state-court decision is consistent with Supreme Court precedent, petitioner can obtain no federal habeas relief on this claim. See 28 U.S.C. § 2254(d)(1).
2. Failure to object to prosecutor's comments during voir dire
Petitioner also alleges that his counsel was ineffective for failing to object to the prosecutor's improper comments regarding his right to not testify. (Pet. at 7-2B-3B). A prosecutor may not comment directly or indirectly on a defendant's failure to testify in a criminal case. United States v. Johnston, 127 F.3d 380, 396 (5th Cir. 1997) (citing United States v. Montoya-Ortiz, 7 F.3d 1171, 1178 (5th Cir. 1993)). "A prosecutor's remarks constitute impermissible comment on a defendant's right not to testify, if the prosecutor's manifest intent was to comment on the defendant's silence or if the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant's silence." Id. (citing United States v. Collins, 972 F.2d 1385, 1406 (5th Cir. 1992). A prosecutor's intent is not "manifest" unless there is no equally plausible explanation for the prosecutor's remark. Id. The challenged remarks are considered in the context in which they are made. Id. (citing Montoya-Ortiz, 7 F.3d at 1179).
In discussing the Fifth Amendment right not to testify in this case, the prosecutor stated to the venire:
Let's go over the 5th Amendment right to testify. The defendant has an absolute right to testify. He also has an absolute right not to testify. That's his call. Okay? And as a juror, the Judge will instruct you that you are not — if the defendant elects not to testify in this case, you cannot hold that as a circumstance against him. Okay? Now, let's talk about that a little bit. . . . [I]s anybody thinking, well, you know, if he doesn't testify, he must be hiding something? Anybody think that? Okay. Well, good.
R.R. vol. 1 at 34-35. In response to several jurors' concerns about a defendant's failure to testify, the prosecutor stated:
[T]here are all kinds of reasons why somebody might not want to testify. Let's go over those. Number one, maybe you get nervous very easily, you wouldn't make a very good witness. Doesn't necessarily mean that you are guilty, just means that you are nervous or maybe you aren't the most well-educated person, and, you know, you don't want to be cross-examined by — you know, an attorney. If you've got a criminal record, that could come in, certain circumstances.
R.R. vol. 1 at 39-40. After more jurors expressed their reservations about a defendant's failure to testify, the trial judge stated:
I think we misplace the thrust of this whole situation. The responsibility of proving the case does not lie upon the defense at all. All a defendant has to do in a criminal case of a felony allegation is to be present at the time that the indictment is presented to the jury, and if they want to absent themselves from the proceedings after that, under the law they can do so. The responsibility of proving the case, if they can, is with the State. . . . Under our system he doesn't have to prove he didn't do it. It's their responsibility to prove that he did.
R.R. vol. 1 at 42-43.
When viewed in light of the repeated concerns expressed by the venirepersons regarding a defendant's failure to testify on his own behalf, the prosecutor's statements do not demonstrate manifest intent to comment on Petitioner's silence, and the character of the statements is not such that the jury would construe them as comments on Petitioner's silence. See Johnston, 127 F.3d at 396. Moreover, even if the Court were to find that the statements were impermissible comments on Petitioner's exercise of his Fifth Amendment right, Petitioner has not shown that counsel's failure to object tainted the jury panel and denied him a fair trial. After the statements at issue were made, the trial judge properly instructed the jury panel as to a defendant's right not to testify and the proper burden of proof in a criminal trial. Plaintiff failed to demonstrate that, but for his attorney's failure to object to the prosecutor's statements about the Fifth Amendment right not to testify, the result of the proceedings would have been different. See Strickland, 466 U.S. at 689.
The Court of Appeals for the Fifth District of Texas at Dallas concluded that the failure of Petitioner's counsel to object to the prosecutor's comments did not taint the jury panel. Wilson, 15 S.W.3d at 552. The state appellate court considered Petitioner's claims of ineffective assistance of counsel for failing to object to the prosecutor's comments on the merits. Wilson, 15 S.W.3d at 552. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court decision on Petitioner's claims of ineffective assistance of counsel due to the failure to object to the prosecutor's statements during voir dire is consistent with Supreme Court precedent. Accordingly, Petitioner can obtain no federal habeas relief on such claims. See 28 U.S.C. § 2254(d)(1).
3. Failure to object to identification procedures
Petitioner argues that his counsel was ineffective during the pretrial Martinez hearing for failing to object to the initial photo array as being impermissibly suggestive. (Pet. at 7-4B-7B). He asserts that in the array, his head is larger than the photos of the other suspects, the background was lighter, his photo was the only one without a placard showing, his face is the only one without a mustache, and only two of the photos show men with muscular necks. Id. Petitioner further argues that his counsel was ineffective by failing to object to the victim's in-court identification as being tainted by the suggestive array. (Pet. at 7-8B-11B).
A Martinez hearing is a hearing pursuant to Martinez v. Texas, 437 S.W.2d 842 (Tex.Crim.App. 1969), which is held outside the presence of the jury to elicit whether a prior police station or lineup identification was unduly suggestive. Webb v. Texas, 760 S.W.2d 263, 269 (Tex.Cr.App. 1988).
To evaluate whether an improper pretrial identification was made, courts look to the standard enunciated in Simmons v. United States, 390 U.S. 377 (1968). See United States v. Burbridge, 252 F.3d 775, 780 (5th Cir. 2001). In Simmons, the Supreme Court held that convictions based on eyewitness identification at trial following a challenged pretrial identification "will be set aside on that ground only if the . . . identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. 377, 384(1968). In determining whether there was a Simmons violation, courts employ a two-step analysis: "first, we determine whether the identification procedure was impermissibly suggestive; if it was, we determine whether, under the totality of the circumstances, the suggestiveness led to a substantial likelihood of irreparable misidentification." Burbridge, 252 F.3d at 780. Stated another way, the second prong requires a court to "determine whether the in-court identification is reliable, notwithstanding the impermissibly suggestive pretrial [identification]." United States v. Honer, 225 F.3d 549, 553 (5th Cir. 2000). In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court set forth factors pertinent to determine the reliability of an in-court identification under the totality of the circumstances. Honer, 225 F.3d at 553. Those factors include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil, 409 U.S. at 199-200. The constitutionality of the pretrial identification procedures used is a mixed question of law and fact. Sumner v. Mata, 455 U.S. 591, 597 (1982). Alleged unconstitutional pretrial identification procedures are thus reviewed under 28 U.S.C. § 2254(d)(1), which precludes relief unless the state court's determination was contrary to, or involved an unreasonable application of, clearly established federal law. Background fact findings made in the course of determining the identification issues are, nevertheless, subject to the presumption of correctness of § 2254(e)(1) and under the AEDPA may be rebutted by clear and convincing proof.
In this instance, the identifying witness identified Petitioner as her attacker in open court and stated that her identification was based upon her memory of the incident, rather than from the photo array. R.R. vol. 2 at 5, 7. She testified that the attack lasted 15 to 20 minutes, that she was able to view her attacker's face for most of the attack, and that she made sure that she would be able to identify him. R.R. vol. 2 at 4. Under the totality of circumstances, the Court finds her in-court identification reliable, even if her pretrial identifications were impermissibly suggestive. Pursuant to § 2254(e)(1) the Court presumes the following facts to be correct: (1) the in-court identifications of Petitioner as the attacker were based upon seeing him at the scene of the assault; (2) the witness would have recognized Petitioner as her attacker even had she never seen the pretrial photographic array; (3) the witness had a reasonable opportunity to see Petitioner at the scene of the assault; (4) the witness saw Petitioner's face; (5) the initial descriptions of the attacker, as a muscular bald black male, about 5'10" to 5'11", closely matched Petitioner; (6) the witness was certain that Petitioner was her attacker; and (7) the witness did not identify anyone else as the attacker. Petitioner has not rebutted the presumption of correctness accorded to these fact findings.
The Court need not determine whether the pretrial identification procedures used in this case were actually impermissibly suggestive. For purposes of these findings and recommendation, the Court assumes, without deciding, that the pretrial identification procedures were impermissibly suggestive.
Under the totality of the circumstances, as set forth in the preceding paragraphs, the Court finds the in-court identification of Petitioner by the complaining witness to be reliable, even if the pretrial photo array was impermissibly suggestive. Under the facts of this case, the identification procedures did not give rise to a very substantial likelihood of irreparable misidentification. Consequently, there was no constitutional violation in the identification procedures and the failure of Petitioner's counsel to object to the identification procedures did not prejudice Petitioner.
The Court of Appeals for the Fifth District of Texas at Dallas considered Petitioner's claims of impermissible suggestive identifications on the merits. Wilson, 15 S.W.3d at 552-554. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court's decision on Petitioner's claims of ineffective assistance of counsel due to the failure to object to the identification procedures is consistent with Supreme Court precedent. Petitioner can obtain no federal habeas relief on such claim. 28 U.S.C. § 2254(d)(1).
4. Failure to object to victim impact statement during trial
Petitioner asserts that his counsel was ineffective for failing to object to victim impact evidence admitted during the guilt-innocence phase of the trial. (Pet. at 7-11B). Pursuant to state law, "[e]vidence of a sexual assault victim's emotional trauma is not relevant at the guilt phase of the trial unless the victim's lack of consent to the assault is disputed." Wilson, 15 S.W.3d at 554 (citing Brown v. Texas, 757 S.W.2d 739, 740-41 (Tex.Crim.App. 1998)).
During the prosecution's examination of the complaining witness, the following exchange took place:
[Prosecutor]: Can you tell this jury how [the assault] has affected your life?
[Witness]: I — I believe that a single individual is not safe on the street anymore. I do not go unescorted anywhere. Not night — and because of this I've also realized that the daylight is no different than the dark anymore. It's — it's dangerous out there anywhere. I've — it's changed in to where I don't — instead of proving the people — or trusting — building up — looking at someone and saying they're safe, I don't do that anymore. I keep a distance, and I always leave a way out wherever I go now. And I try not to travel by myself. Two is better than one is any day.
R.R. vol. 3 at 33-34.
Because the victim's consent was not at issue in this case, the state appellate court assumed that Petitioner's counsel committed error by failing to object. Wilson, 15 S.W.3d at 554-55. However, after considering the totality of the evidence supporting Petitioner's conviction, the state court determined that the record did not support a finding that there was a reasonable probability that the outcome of the trial would have been different if there had been an objection to the victim impact testimony. Id.
The complaining witness identified Petitioner in court as her attacker. R.R. vol. 2 at 5, 7. Petitioner's wife identified the towel found in the complaining witness's car as belonging to Petitioner. R.R. vol. 3 at 161. The license number reported by the complaining witness was similar to the license number of Petitioner's car and Petitioner's car resembled the vehicle described by the witness. R.R. vol. 3 at 128-129. After considering the totality of the evidence before the fact finder, the Court concludes that Petitioner has failed to affirmatively show that his attorney's failure to object to the victim impact statement at the guilt-innocence phase of trial rendered the proceeding fundamentally unfair and that, but for that error, there is a reasonable likelihood that the result of the proceeding would have been different. See Strickland, 466 U.S. at 695-96.
The Court of Appeals for the Fifth District of Texas at Dallas considered Petitioner's claims of ineffective assistance of counsel for failing to object to the victim impact evidence on the merits. Wilson, 15 S.W.3d at 554-55. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court's decision on Petitioner's claims of ineffective assistance of counsel due to the failure to object to the victim impact statement at the guilt-innocence phase is consistent with Supreme Court precedent. Petitioner can obtain no federal habeas relief on this claim. 28 U.S.C. § 2254(d)(1).
5. Failure to object to prosecutor's reference to another investigation during trial
Petitioner claims that he received ineffective assistance of counsel by his attorney's failure to object to the prosecutor's multiple innuendos about another investigation during the guilt-innocence phase of the trial. (Pet. at 7-12B). Pursuant to TEX. R. EVID. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a defendant, but maybe admissible for other purposes. Such evidence, though relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury. TEX. R. EVID. 403; Montgomery v. Texas, 810 S.W.2d 372, 389 (Tex.Cr.App. 1990).
At Petitioner's trial, the prosecutor questioned the investigating detective about his investigation of the case. The detective testified that while trying to develop a suspect he spoke to another detective, who referred him to an investigator, who "was working on something." R.R. vol. 3 at 123. During the closing argument, the prosecutor stated: "[W]hat did [the investigating detective] do? He spoke with another Irving investigator . . . who as [the detective] said, was working on something else. And how — and lo and behold, turned him on to the defendant." R.R. vol. 3 at 190. Petitioner claims that the above testimony and argument implied that he was being investigated on another offense and constituted evidence of an extraneous offense. Assuming that Petitioner is correct and that his counsel should have objected, after considering the totality of the evidence before the fact finder, the Court concludes that Petitioner has failed to affirmatively show that the failure to object rendered the proceeding fundamentally unfair and that, but for that error, there is a reasonable likelihood that the result of the proceeding would have been different. See Strickland, 466 U.S. at 695-96.
The Court of Appeals for the Fifth District of Texas at Dallas considered Petitioner's claims of ineffective assistance of counsel for failing to object to references to another investigation. Wilson, 15 S.W.3d at 555. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court's decision on Petitioner's claims of ineffective assistance of counsel due to the failure to object to the testimony and argument is consistent with Supreme Court precedent. Petitioner can obtain no federal habeas relief on this claim. 28 U.S.C. § 2254(d)(1).
C. Punishment phase
1. Standard of review
To demonstrate that he was prejudiced by his counsel's allegedly deficient performance at the punishment phase of trial, a petitioner must demonstrate a reasonable probability that, but for his counsel's actions, he would have received a lesser sentence. Glover v. United States, 531 U.S. 198, 204 (2001). '"[A]ny amount of actual jail time has Sixth Amendment significance' which constitutes prejudice for purposes of the Strickland test. United States v. Conley, 2003 WL 22455400, *3 (5th Cir. October 30, 2003) (quoting Glover, 531 U.S. at 203)).
2. Failure to object to penitentiary packet
Petitioner asserts that his counsel was ineffective for failing to object to the admission of a penitentiary packet that did not contain a proper judgment and sentence and contained a rap sheet listing other charges without any other documentary proof of those charges. (Pet. at 7-13B-15B). Under state law, only a final conviction is admissible as evidence of a defendant's criminal record. Wilson, 15 S.W.3d at 555. "To be considered evidence of a final conviction, a penitentiary packet must contain a judgment and sentence, properly certified." Id. (citing Langston v. Texas, 776S.W.2d 586, 587 (Tex.Crim.App. 1989)).
At the punishment phase of the trial, Petitioner's Louisiana prison record was admitted into evidence. R.R. vol. 4 at 29. It detailed two convictions, and Petitioner's counsel stated that there was no objection to its admission. Id. It appears that the evidence of prior convictions was not used to enhance Petitioner's sentence. See Trial Court Cause No. F96-29667-M at 15. Petitioner was sentenced by the trial judge and received the maximum sentence, life imprisonment. The state appellate court found that none of the documents in the penitentiary packet showing Petitioner's prior convictions and admitted during the punishment phase of Petitioner's trial was admissible because none of the documents purported to be a judgment, sentence, or commitment order. Wilson, 15 S.W.3d at 555-56. However, that court determined that there was no reasonable probability that the outcome of the case would have been different had Petitioner's counsel objected to the admission of the penitentiary packet. Id.
Other evidence admitted during the punishment phase of Petitioner's trial included the testimony of witnesses who alleged that Petitioner was the assailant in another, unadjudicated extraneous sexual assault, and a photograph of a gun recovered from Petitioner's vehicle.
There was no allegation that Petitioner used a weapon in committing either assault.
After considering the totality of the evidence before the fact finder, the Court concludes that Petitioner has failed to demonstrate a reasonable probability that, but for his counsel's actions, he would have received a lesser sentence. Petitioner was convicted of aggravated sexual assault, a first degree felony. Pursuant to Tex. Penal Code § 12.32(a), a first degree felony is punishable "by imprisonment in the institutional division for life or for any term of not more than 99 years or less than 5 years." Although the penitentiary packet was inadmissible in the form submitted to the trial court in the punishment phase, Petitioner does not claim that the information contained therein was in error or that the state would not have been able to remedy the deficiencies and resubmit the penitentiary packet in an admissible format.
The Court of Appeals for the Fifth District of Texas at Dallas considered Petitioner's claims of ineffective assistance of counsel for failing to object to admission of the penitentiary packet on the merits. Wilson, 15 S.W.3d at 555-56. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court's decision on Petitioner's claims of ineffective assistance of counsel due to the failure to object to the admission of the penitentiary packet is consistent with Supreme Court precedent. Petitioner can obtain no federal habeas relief on this claim. 28 U.S.C. § 2254(d)(1).
3. Failure to object to victim impact statement
Petitioner states that his counsel was ineffective during the punishment phase by failing to object to a victim impact statement concerning an unadjudicated extraneous offense. (Pet. at 7-15B-17B). Under state law, the testimony of a victim of an extraneous offense concerning the effect of the offense on her life is inadmissible. Wilson, 15 S.W.3d at 556 (citing Boston v. Texas, 965 S.W.2d 546, 550 (Tex.App.-Houston [14th Dist] 1997)).
During the punishment phase, the prosecutor questioned the victim of an unadjudicated extraneous offense. After she testified about the details of the attack, the following exchange occurred:
[Prosecutor]: . . . [T]ell the Court how this has affected your life.
[Witness]: My God, where do I begin? It's changed my life. It has absolutely changed my life. For the first what, first three months, six months, I lived in fear, not knowing where this phantom was, not knowing why, and I still would like to know why, why, came into my life and completely changed it. But you didn't change me, and you still didn't get me. You still did not get me. You tried, but you didn't win. I want you to know that. I understand what this type of attack is. It's a power thing. You have no power over me, and you have no power over my life, and I want you to know that. That's something I want you to live with the rest of your life, because that's what you chose for me to live with the rest of my life. And also another thing I'm not a victim. I want you to know something else, I'm a survivor. You didn't get. You did not get me. Can't even look at me in the face.
[Prosecutor]: . . . [I]s there anything else you want to say?
[Witness]: Yes. Make him be held accountable for what he's done. Give him the strongest sentence you can so he cannot hurt anybody else the way he's hurt me and my family and Alex and Cindy and most of all the hell he's put these other women through. Make him pay for what he's done. It's time to make it stop, make the cycle stop. Have him be held accountable for everything that he's done. Don't let him go free. I mean, throw the book at him. Do what you have to do to the fullest extent of the law, because, sir, that is your job. Do it. Make him be held accountable. Don't let him hurt anybody else.
R.R. vol. 4 at 11-12.
The state appellate court found that the admission of the above testimony was error. Wilson, 15 S.W.3d at 556. However, the court concluded that because the evidence fully supported imposition of the maximum punishment, no reasonable probability existed that the outcome of the case would have been different had Petitioner's counsel objected. Id. After considering the totality of the evidence before the trial court, the Court concludes that Petitioner has failed to demonstrate a reasonable probability that, but for his counsel's actions, he would have received a lesser sentence.
The Court of Appeals for the Fifth District of Texas at Dallas considered Petitioner's claims of ineffective assistance of counsel for failing to object to the victim impact statement on the merits. Wilson, 15 S.W.3d at 556. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court's decision on Petitioner's claims of ineffective assistance of counsel due to the failure to object to the admission of the victim impact statement is consistent with Supreme Court precedent. Petitioner can obtain no federal habeas relief on this claim. See 28 U.S.C. § 2254(d)(1).
4. Failure to request a Martinez hearing
Petitioner claims his counsel was ineffective for failing to request a Martinez hearing concerning the out of court identification of Petitioner by a witness to the unadjudicated extraneous offense. (Pet. at 7-16B-18B). In this case, the evidence complained of was presented to the court, rather than to the jury. Thus, a Martinez hearing was unnecessary, and Petitioner's counsel did not commit any error in failing to request such a hearing.
The Court of Appeals for the Fifth District of Texas at Dallas considered Petitioner's claims of ineffective assistance of counsel for failing to object to requests a Martinez hearing on the merits. Wilson, 15 S.W.3d at 556. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court's decision on Petitioner's claims of ineffective assistance of counsel due to the failure to request a Martinez hearing is consistent with Supreme Court precedent. Petitioner can obtain no federal habeas relief on this claim. See 28 U.S.C. § 2254(d)(1).
5. Failure to object to photo array and identification
Petitioner also asserts that the photo array shown to a witness to an extraneous offense was suggestive and caused the witness's identification at the punishment phase of trial to be impermissibly tainted, and that his counsel was ineffective for failing to object to the in-court identification. (Pet. at 1-16B-18B).
As noted above, to evaluate whether an improper pretrial identification was made, courts look to whether the "identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384 (1968). The factors used to determine the reliability of an in-court identification include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil, 409 U.S. at 199-200.
In this instance, the identifying witness identified Petitioner as the attacker in open court and stated that he was able to get a good look at the man. R.R. vol. 4 at 18. After the incident, the witness was unable to identify anyone from a photo array that did not include Petitioner. Id. Almost one year later, the witness was shown a second photo array and identified Petitioner as the assailant. R.R. vol. 4 at 19. The witness stated that he was positive that Petitioner was the person he observed at the scene of the attack. R.R. vol. 4 at 19-20. Assuming arguendo that the pretrial identifications were impermissibly suggestive, the Court finds the in-court identification reliable under the totality of circumstances. Pursuant to § 2254(e)(1) the Court presumes the following facts to be correct: (1) the in-court identifications of Petitioner as the attacker were based upon seeing him at the scene of the assault; (2) the witness would have recognized Petitioner as the attacker even had he never seen the pretrial photographic array; (3) the witness had a reasonable opportunity to see Petitioner at the scene of the assault; (4) the witness saw Petitioner's face; (5) the witness was certain that Petitioner was the attacker; and (6) the witness did not identify anyone else as the attacker. Petitioner has not rebutted the presumption of correctness accorded to these fact findings.
The Court need not determine whether the pretrial identification procedures used in this case were actually impermissibly suggestive.
Under the totality of the circumstances, the Court finds the in-court identification of Petitioner by the witness to the unadjudicated extraneous offense to be reliable, even if the pretrial photo array was impermissibly suggestive. Under the facts of this case, the identification procedures did not give rise to a very substantial likelihood of irreparable misidentification. Consequently, there was no constitutional violation in the identification procedures and the failure of Petitioner's counsel to object to the identification procedures did not prejudice Petitioner.
The Court of Appeals for the Fifth District of Texas at Dallas considered Petitioner's claims of ineffective assistance of counsel for failing to object to the photo array and the in-court identification on the merits. Wilson, 15 S.W.3d at 556. The AEDPA standards in 28 U.S.C. § 2254(d) thus apply. The state court's decision on Petitioner's claims of ineffective assistance of counsel due to the failure to object to the identification procedures is consistent with Supreme Court precedent. Petitioner can obtain no federal habeas relief on such claim. 28 U.S.C. § 2254(d)(1).
IV. TRIAL ERROR
Petitioner argues that the trial court erred in denying his motion to disregard the evidence of the unadjudicated extraneous offense submitted during the punishment phase of his trial, because the evidence was factually insufficient. (Pet. at 7.)
"A federal habeas court has nothing whatsoever to do with reviewing a state court ruling on the admissibility of evidence under state law" unless it is asserted that the state law itself violates the Constitution. Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir. 1993). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner is thus entitled to federal habeas relief due to trial error only if such error is not harmless within the meaning of Brecht v. Abrahamson, i.e. "the error 'had substantial and injurious effect or influence in determining the . . . verdict.'" 507 U.S. 619, 637-38 (citation omitted). "State appellate courts are free to police their own evidentiary rules." Id. at 1224.
Under Tex. Code Crim. Pro. art. 37.07 § 3(a), evidence of an extraneous crime or bad act that has been shown beyond a reasonable doubt to have been committed by the defendant may be admitted. Wilson, 15 S.W.3d at 548. Because the "review of extraneous offenses at punishment concerns only an evidentiary issue and not an ultimate issue concerning the [defendant's] punishment," under state law, factual sufficiency review "does not apply to a factfinder's determination at the punishment phase that the evidence proves beyond a reasonable doubt that the defendant committed an unadjudicated extraneous offense." Id. at 549. Accordingly, the state appellate court overruled Petitioner's claim of error in the failure to disregard the evidence of the unadjudicated extraneous offense. Id.
Petitioner has not asserted that the state rule making factual sufficiency review inapplicable to unadjudicated extraneous offense evidence introduced at the punishment phase of trial violates the Constitution. However, it is worth noting that "[a]n extraneous offense may be admitted into evidence without violating the due process clause if the government makes a 'strong showing that the defendant committed the offense' and if the extraneous offense is 'rationally connected with the offense charged.'" Story v. Collins, 920 F.2d 1247, 1254 (5th Cir. 1991) (quoting Enriquez v. Procunier, 752 F.2d 111, 115 (5th Cir. 1984)).
In this case, the victim of the extraneous offense testified that he held a sweater over her head and that she was unable to identify him. R.R. vol. 4 at 7. Her roommate and the roommate's boyfriend interrupted the attack and her assailant ran from the room. Id. at 11. The roommate's boyfriend testified that as he chased the attacker from the apartment, the man confronted him and threatened to shoot him. Id. at 17. The boyfriend stated that he was able to get a good look at the man. Id. at 18. He gave a written statement, wherein he identified the attacker as 5'10" with a receding hairline, 35 to 40 years old. Id. at 25. After the incident, he was unable to identify anyone from a photo array that did not include Petitioner. Id. Almost one year later, he was shown a second photo array and identified Petitioner as the assailant. Id. at 19. The boyfriend stated that he was positive that Petitioner was the person he observed at the scene of the attack. Id. at 19-20, 24. The boyfriend's testimony made a strong showing that Petitioner committed the extraneous offense, and the evidence of that offense was rationally related to the charged offense because it indicated Petitioner's proclivity to sexual assault on women. Accordingly, the failure to disregard the evidence of the unadjudicated extraneous offense submitted during the punishment phase did not violate due process.
V. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
VI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.