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noting that, because the record did "not reflect that the state at any time requested a continuance in the case," the reason for the delay factor did "not necessarily weigh[] heavily against the state"
Summary of this case from Hawkins v. HargraveOpinion
Civil Action No. 4:03-CV-058-A.
July 14, 2003.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Deangus M. Wright, TDCJ-ID #919903, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Amarillo, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1998, Wright was charged by indictment in state court with the capital murder of Cheron Hill. (Clerk's R. at 3.) On March 31, 2000, a jury found him guilty, and the court assessed an automatic life sentence. (Id. at 65.) Wright appealed his conviction, but the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on June 28, 2001. Wright v. State, No. 2-00-142-CR (Tex.App.-Fort Worth June 28, 2001). On October 10, 2001, the Texas Court of Criminal Appeals refused Wright's petition for discretionary review. Wright v. State, PDR No. 1685-01.
Wright subsequently filed a state application for writ of habeas corpus, raising the issues presented, which the Texas Court of Criminal Appeals denied without written order on October 23, 2002. Exparte Wright, No. 53,739-01, at cover. He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on January 22, 2003, and, on February 24, 2003, he filed a memorandum in support. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). Cockrell has filed an answer with supporting documentation.
Cockrell also filed a preliminary response, pursuant to court order dated January 29, 2003, on the issue of limitations, to which Wright replied. Having reviewed those pleadings, it appears Wright's petition is timely under 28 U.S.C. § 2244(d).
D. ISSUES
In four grounds, Wright raises the following claims:
(1) The state "discriminatorily" used its peremptory challenges;
(2) He was denied his right to a speedy trial;
(3) He received ineffective assistance of counsel; and
(4) The judgment and sentence was entered without authority by the trial court. (Pet. at 7A-8A.)
E. RULE 5 STATEMENT
Cockrell contends that Wright has failed to exhaust his claims as federal constitutional claims and that any unexhausted federal claims are procedurally defaulted. (Resp't Answer at 3.) 28 U.S.C. § 2254(b)-(c). She does not, however, move for dismissal on exhaustion grounds. (Id.)F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Exparte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Peremptory Challenges
Under his first ground, Wright contends that the state used peremptory strikes against veniremembers one, six, and twenty-nine, three prospective African-American jurors, on discriminatory grounds. (Pet. at 7A; Pet'r Mem. at 1-3.) In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court outlined the methodology for evaluating a claim that jurors were improperly stricken based on their race. Initially, the defendant must make a prima facie showing that the challenged strike has been employed in a racially discriminatory manner. Once this showing has been made, the prosecutor must articulate race-neutral selection criteria. The district court then must determine whether the defendant has established purposeful racial discrimination. Id. at 93-98.
In the instant case, the reporter's record of the voir dire proceedings reflects that of five potential African-American jurors, veniremembers one, six, sixteen, twenty-nine, and thirty-four, the state exercised peremptory strikes against two, veniremembers one and sixteen. (2Rep. R. at 175-76.) Veniremember six was excused by agreement, and veniremember thirty-four was apparently outside the strike zone. (Id. at 176.) Contrary to Wright's assertion, the record does not reflect that the state exercised a peremptory strike against veniremember twenty-nine, and, during the Batson hearing, the defense challenged only the strikes against veniremembers one and sixteen. The state prosecutors testified individually, outside of each other's presence, and gave substantially similar race neutral reasons in support of the challenged strikes. (Id. at 177-84.) The state court found the prosecutor's explanations plausible and proceeded with the jury as selected. (Id. at 184.)
As previously noted, a federal court's review of state court findings is sharply circumscribed under 28 U.S.C. § 2254, which requires us to accept as correct a determination of a factual issue by a state court unless the habeas petitioner rebuts the state court's finding by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 123 S.Ct. 1029, 1041 (2003). Assuming Wright satisfied step one of the Batson framework and that the state continued through step two by offering race-neutral explanations for their strikes, the question is whether Wright has carried his burden to prove purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-60 (1991). The critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for the peremptory strike. Purkett v. Elen, 514 U.S. 765, 768 (1995). Typically, an evaluation of the prosecutor's state of mind based on demeanor and credibility lies within the province of the trial judge, and the trial court's findings in this context are entitled to the presumption of correctness. 28 U.S.C. § 2254(e)(1); Miller-El, 123 S.Ct. at 1041; Hernandez, 500 U.S. at 364.
Thus, we begin with the proposition that the state court appropriately accepted the race-neutral reasons tendered by the prosecutors as truthful and properly rejected Wright's charges of discrimination. In response, Wright simply contends, without explanation or evidentiary support, that the proffered reasons were pretextual and that "the State's custom, practice and policy is to hold African/American Jurors to a more strigent [sic] standard of review to answers on questionairs [sic] given by the State, where African/American's questionairs [sic] are subjective to a heighten [sic] intuitive scrutiny." (Pet. at 7A.) However, even if Wright's allegations were decipherable, his assertions, without more, fail to demonstrate that the state court's decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence. See Miller-El, 123 S.Ct. at 1041. The prosecutors explained that veniremember one was struck because she appeared to think that a 40-year parole period was too long, because she had an experience with the Arlington Police Department that she felt was racially motivated, because she thought death-row inmate Darlie Routier was not guilty, and because she mischaracterized a "home invasion" on her questionnaire. (2Rep. R. at 178-84.) They further explained that veniremember sixteen was struck because he was arrested for domestic violence in 1992 and because he appeared to agree with defense counsel that it was wrong for law enforcement officers to talk to suspects before "turning the [tape] recorder on." (Id.) The reasons given are racially neutral and fully supported by the record. (Id. at 65-73, 92, 162-65; 6Rep. R. at State's Batson Ex. 1.)
3. Speedy Trial
In his second ground, Wright contends the 785-day delay between the date he was arrested and the date his trial began violated his constitutional right to a speedy trial. (Pet. at 7A-7B; Pet'r Mem. at 3-4.) The Sixth Amendment guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. CONST. amend. VI. The criteria for assessing a speedy trial claim is set out in Barker v. Wingo, 407 U.S. 514, 530 (1972). Under Barker, a court must consider the following factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant. Id.
To the extent he contends the delay violated his state statutory right to a speedy trial, his claim is not cognizable on federal habeas review. 28 U.S.C. § 2254(a).
Cockrell concedes that the 25-month delay between Wright's arrest and the commencement of trial was "presumptively prejudicial." (Resp't Answer at 8.) See Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992). Cockrell further concedes that Wright asserted his speedy trial rights via a motion for speedy trial filed on March 9, 1998, but she points out that Wright never obtained a ruling on the motion or reurged the motion prior to trial. (Id.) Therefore, it is necessary to balance those factors against the remaining two factors of the Barker test.
In examining the reasons for the delay, a court must heed the Supreme's Court's warning that "pretrial delay is often both inevitable and justifiable." Doggett, 505 U.S. at 656. Here, the state court records are silent as to the reason for the delay. The records do reflect, however, that a felony complaint was filed in the case on February 13, 1998, and that Wright was "in custody" on February 17, 1998. (Clerk's R. at 4.) Wright was appointed counsel on March 9, 1998, and counsel filed a motion for speedy trial on the same date. (Id. at 10.) The indictment was subsequently filed on April 30, 1998, and the state announced ready for trial on that date. (Id. at 4, 22.) Thereafter, the case was set on the trial court's docket at least seven times before trial commenced on March 28, 2000. (Id. at 4-5.) The record does not reflect that the state at any time requested a continuance in the case or otherwise sought a tactical advantage by delaying Wright's trial. Thus, this factor does not necessarily weight heavily against the state.
As to the fourth factor, there is no indication in the record that Wright was prejudiced by the delay, other than his vague assertions that the delay (1) prejudiced his "ability to obtain potential witnesses that would have testified, whom now refused after this long delay," (2) "subjected him to constant harassment tactics" by law enforcement, and (3) resulted in oppressive pretrial conditions and anxiety. (Pet. at 7B.) See Doggett, 505 U.S. at 654; Barker, 407 U.S. at 532. Although Wright understandably experienced some degree of anxiety and concern, without substantiation in the record, a habeas court cannot consider a petitioner's mere assertions on a critical issue to be of probative value. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Thus, this factor does not weigh heavily against the state either.
Having weighed the Barker factors as they apply to the case, Wright has failed to demonstrate a speedy trial violation. Thus, the state court's findings are entitled to the appropriate deference.
4. Ineffective Assistance of Counsel
Under his third ground, Wright appears to argue that he received ineffective assistance of "trial/appellate" counsel because counsel failed to pursue his right to a speedy trial or raise the issue on appeal, and because counsel failed to raise a Batson claim on appeal "where the State failed to provide a race neutral explanation for their discriminatory striking of Juror No. 29." (Pet. at 8A.) First, as stated earlier, the reporter's record of the state court proceedings does not show that the state exercised a peremptory strike against veniremember twenty-nine. Thus, to the extent Wright claims counsel was ineffective by failing to raise on appeal a Batson claim regarding veniremember twenty-nine, his claim is frivolous. We turn then to his remaining claims.
In the instant petition, Wright also complains that counsel failed to prepare his case for trial and to fully prepare for cross-examination of the witnesses. (Pet'r. Mem. at 6.) These claims, however, were not raised in state court and, thus, are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(1).
A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668,688 (1984); Anders v. California, 386 U.S. 738,744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984). See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002) (applying the Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688.
A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Where, as here, a petitioner's ineffective assistance claims have been reviewed on the merits under the Strickland standard and denied by the state's highest court, federal habeas relief will be granted only if the state court's decision was contrary to or involved an unreasonable application of Strickland, or if the state court's decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 123 S.Ct. 676 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 123 S.Ct. 625 (2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002).
If the state court does not make express findings of fact, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sain, 372 U.S. 293, 314 (1963); Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir. 1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973). Further, if the state court does not articulate the constitutional standards applied, this court may assume that the state court applied correct standards of federal law to the facts in the absence of evidence that an incorrect standard was applied. Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001).
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir. 1981).
Wright was represented by William H. Ray at trial and on appeal. The Texas Court of Criminal Appeals considered and rejected Wright's ineffective assistance claims without a hearing and without making express findings of fact. (State Habeas R. at cover, 82.) Nevertheless, absent evidence to the contrary, it is assumed that the state court applied the Strickland standard for ineffective assistance claims and impliedly found that Wright received effective assistance. An independent review of his claims in conjunction with the state court records does not indicate that the state court's decision was contrary to or involved an unreasonable application of Strickland, or that it was based on an unreasonable determination of the facts as presented in the state court proceedings. 28 U.S.C. § 2254(d)(2), (e)(1). The record is silent as to counsel's reasons for not obtaining a ruling on the motion for speedy trial or for not reurging the motion prior to trial. Further, as discussed above, Wright has failed to demonstrate a speedy trial violation. Accordingly, he cannot show, by a preponderance of the evidence, that his attorney was ineffective by not pursuing a speedy trial more vigorously or raising the issue on appeal. Finally, Wright's bare assertion that he was "harmed" as a result of counsel's omissions falls short of satisfying the prejudice element of Strickland-i.e., that the result of his trial or his appeal would have been different had his attorney more vigorously pursued a speedy trial or raised the issue on appeal.
5. Authority to Enter Judgment and Sentence
In his fourth ground, Wright contends that Senior District Judge L. Clifford Davis had no authority or jurisdiction to enter judgment and sentence in his case because Davis, a retired judge assigned to preside over the trial, was not "elected by the citizens of Tarrant County" and had "not taken the two Oaths of Office as required by the Texas Constitution, and required by all State Judges." (Pet. at 8A.)
Wright's claim is not remediable in a § 2254 proceeding, because matters of pure state law are not cognizable in federal habeas corpus proceedings. See Wainwright v. Goode, 464 U.S. 78 (1983); Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir. 1983). Federal habeas corpus is available for the vindication of rights existing under federal constitutional law. 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 22 (1975). That said, as a matter of state law, a retired judge sitting by administrative assignment possesses all the powers of court to which he is assigned, and, absent a showing to the contrary, it is presumed that the assignment was properly made in accordance with all state statutory requirements. TEX. GOV'T CODE ANN. § 74.052 (Vernon 1998); Harrold v. Texas, 650 S.W.2d 814, 817 (Tex.Crim.App. 1983); Alexander v. State, 903 S.W.2d 881, 883 (Tex.App. Fort Worth, 1995, no pet.).
6. Evidentiary Hearing
Finally, Wright contends that he was not afforded a full and fair adjudication of his claims in state court because the state court did not hold an evidentiary hearing on the merits of the claims and, instead, chose "to remain silent." (Pet'r Mem. at 7-8.) The Texas Court of Criminal Appeals denied Wright's state writ application without written order. Contrary to Wright's argument, this ruling constitutes an adjudication of his claims and is entitled to the presumption of correctness. See Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d at 472. Moreover, if a petitioner fails to develop a factual basis for a claim in state court, a federal habeas court shall not conduct an evidentiary hearing on the claim unless the claim relies on a new rule of constitutional law or on "a factual predicate that could not have been previously discovered through the exercise of due diligence," and the facts "would be sufficient to establish by clear and convincing evidence" the petitioner's actual innocence. 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 434-37 (2000). Wright did not request an evidentiary hearing at the state level, and he does not contend that he was prevented from developing the factual predicate for his claims or present any supporting documentation. See Riddle v. Cockrell, 288 F.3d 713, 719 (5th Cir., cert. denied, 123 S.Ct. 420 (2002). Thus, because Wright did not diligently pursue the factual development of his claims, he must satisfy the statutory requirements under § 2254(e)(2). This he cannot do. His claims do not rely on a new rule of constitutional law or on a legal or factual basis that did not exist at the time of the state-court proceedings. 28 U.S.C. § 2254(e)(2)(A)(i)-(ii); see also Williams, 529 U.S. at 435-36. In sum, Wright received a full and fair adjudication of his claims at the state level and the state's implied factual determinations are fairly supported by the record as a whole. Thus, an evidentiary hearing is not warranted.
II. RECOMMENDATION
Wright's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 4, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 4, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.