Opinion
No. 3:03-CV-2441-R.
October 19, 2005
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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow.
Parties
Anthony Paul Allison ("Petitioner") is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
Petitioner waived a jury, and the trial court found Petitioner guilty of sexual assault of a child and assessed his punishment at fifteen years in the custody of TDCJ-CID. State v. Allison, F-0134547-TR (265th Dist. Ct., Dallas County, Tex. Nov. 9, 2001). Petitioner appealed, and the state appellate court affirmed his conviction. Allison v. State, No. 05-02-00154-CR (Tex. App — Dallas, July 17, 2002, no pet.) (unpublished). Petitioner did not seek discretionary review.
On May 24, 2003, Petitioner filed a state application for writ of habeas corpus. Ex parte Allison, No. 55,795-01 (Tex.Crim.App. June 18, 2003). The Texas Court of Criminal Appeals denied the application without written order. Id. at cover.
Petitioner initiated this proceeding on October 8, 2003, by placing his petition for writ of habeas corpus in the prison mail system. Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).
Statement of the Case
The state appellate court described the case as follows:
In the summer of 1997, [Petitioner] moved in with the complainant and her mother, Jacqueline Whetstone. The complainant testified that sometime in May 1998, [Petitioner] held her down and sexually assaulted her in the early morning after her mother had left for work. She testified that [Petitioner] said he would kill her and her mother if she told anyone what had happened. The complainant was fifteen years old and a sophomore in high school at the time of the first assault. According to the complainant, [Petitioner] sexually assaulted her again approximately a month later. [Petitioner], she said, repeated the threat to kill her and her mother if she reported the assault to anyone. The complainant moved in with her aunt in May 2001 to get away from [Petitioner]. A short time thereafter, Whetstone left [Petitioner]. When the complainant heard that her mother intended to move back in with [Petitioner], she told her mother of the sexual assaults three years before. She had never mentioned them to anyone else. Whetstone testified that she never suspected that [Petitioner] had sexually molested her daughter until her daughter told her shortly after moving in with her aunt.
The complainant acknowledged that she had experienced little discipline before [Petitioner] moved in with her mother. She also testified that she had started using drugs two months after the second assault.
[Petitioner] testified in his defense. He claimed that he was completely unaware of the complainant's accusations until Whetstone told him. He denied the allegations. The complainant, he testified, never seemed to fear him, but she did resent his attempts to discipline her. She especially resented his efforts to discourage her relationship with her twenty-eight-year-old boyfriend. He thought the complainant concocted the accusations when she learned that her mother was planning to live with him again because she wanted to prevent the reconciliation.Allison, slip op. at 1-2.
Issues
Petitioner claims that:
1. The evidence was insufficient to support his conviction; and
2. Counsel provided constitutionally ineffective assistance by failing to admonish Petitioner of his rights to an examining trial and to an appeal.
(Fed. Writ Pet. at 7-8.)
Additionally, Petitioner claims in his reply that the indictment was filed on June 4, 2001, and not on May 10, 2001, as Respondent contends. He claims that he should have been tried in the 283rd Judicial Court, not the 265th Judicial Court, and that there is no written record of a change of venue.
Exhaustion of State Court Remedies
Respondent states that Petitioner has sufficiently exhausted his state court remedies except the claim of ineffective assistance of counsel for failing to admonish him of his right to appeal. Respondent argues that this ineffective assistance claim is procedurally defaulted because Petitioner can no longer return to state court to exhaust his claim. Further, Respondent contends that Petitioner procedurally defaulted his claim of insufficiency of the evidence by raising it only on appeal and not in a petition for discretionary review because the Texas Court of Criminal Appeals will not consider such a claim in an application for writ of habeas corpus.
Standard of Review
A federal court may not grant a writ of habeas corpus on behalf of a person in custody under a state court judgment with respect to any claim that was adjudicated on the merits 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 from that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the Supreme Court 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). A state court decision is an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam).
A state court's determination of a factual issue shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, this presumption is applicable. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
Exhaustion and Procedural Default
Applicants who seek habeas relief under § 2254 must exhaust all claims in state court before they request federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas corpus claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. The state court must have a fair opportunity to decide the claim. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). This, in turn, requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Id.
Petitioner did not properly present to the state's highest court either his claim that trial counsel was ineffective for failing to advise him of his appellate rights, or his claim that the court changed venue improperly. Thus, Petitioner seeks federal habeas corpus relief based on factual allegations and legal theories that were never presented to the highest state court. His failure renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
Petitioner cannot return to the Texas court to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either cause for the default and actual prejudice, or that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Petitioner has not shown that this Court should excuse his default. Indeed, these issues were known, or should have been known, to Petitioner before he filed his state habeas corpus application. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998). Accordingly, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
Insufficient Evidence
Petitioner argues that the evidence is legally insufficient to support his conviction because the case was not proven beyond a reasonable doubt and there were no medical records or physical evidence to substantiate the trial court's finding of guilt. (Fed. Writ Pet. at 7.) Respondent contends that this sufficiency-of-the evidence claim is barred from federal habeas corpus review because Petitioner failed to raise the claim in a PDR after the state appellate court denied it. (Resp'ts Answer at 10.) In any event, this claim is without merit.To review the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence "in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All credibility choices and conflicting inferences are to be resolved in favor of the fact-finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999). This Court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 324 n. 16). This Court need not find that the evidence excluded every reasonable hypothesis of innocence or was wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could have found that the evidence, whether direct or circumstantial, and all reasonable inferences drawn from it established guilt beyond a reasonable doubt. United States v. Salazar, 958 F.2d 1285, 1294 (5th Cir. 1992). Great weight must be given to any state court's review and determination of the sufficiency of the evidence. Gibson v. Collins, 947 F.2d 780, 782, 786 (5th Cir. 1991).
The state appellate court held that the evidence was legally sufficient to support Petitioner's conviction, stating:
In analyzing the legal sufficiency of the evidence in a criminal case, an appellate court considers the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). A factual sufficiency analysis requires the appellate court to conduct a neutral review of all the evidence to determine whether the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or the proof of guilt, although adequate if considered alone, is greatly outweighed by contrary evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000).
Here, the complainant's testimony that while she was fifteen years old and not appellant's spouse, [Petitioner] held her down and sexually assaulted her by penetrating her vagina with his penis is, in itself, legally sufficient evidence to support appellant's conviction. See, e.g., Dalgleigh v. State, 787 S.W.2d 531, 534-35 (Tex. App — Beaumont 1990, pet. ref'd). We conclude that the evidence is also factually sufficient. The trial court, as fact finder, was entitled to believe the complainant's account although it was controverted. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). [Petitioner] denied the charge and suggested a plausible motive for the complainant to have made what, he insists, were false accusations. This, however, does not constitute overwhelming evidence showing the guilty verdict was unjust. Appellant's second and third points of error are overruled.Allison v. Texas, slip op. at 2.
Petitioner presents no evidence other than his own conclusion that the evidence was insufficient. Conclusory assertions, without more, are insufficient to support habeas corpus relief. See Ross v. Estelle, 694 F.2d at 1011 (citing Woodard v. Beto, 447 F.2d 103,104 (5th Cir. 1971)). Further, there is no evidence that the state court's finding resulted in a decision that was contrary to law.
Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard: deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show that: (1) counsel's performance was deficient in that the errors counsel made were so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 687, 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one of the prongs. Id. at 697.In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions. Id. at 689-90. Rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct and is presumed to have been adequate. Id. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's denial of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Petitioner's allegation that counsel provided ineffective assistance by failing to advise Petitioner of his right to appeal is procedurally barred. Therefore, the only remaining claim is that counsel provided ineffective assistance by failing to advise Petitioner of his right to an examining trial. (Fed. Writ Pet. at 7-8.) Under Texas law, the accused in any felony case has the right to an examining trial before indictment in the county having jurisdiction of the offense. TEX. CODE CRIM. P. art. 16.01. (Vernon 1965). Petitioner does not explain when counsel was hired or appointed or how counsel would have obtained an examining trial for him. Under Texas law, a defendant loses his right to an examining trial when he is indicted, because "the return of a true bill by the grand jury satisfies the principal purpose and justification for such a preliminary hearing — that there is probable cause to believe the accused committed the crime charged." Brown v. State, 475 S.W.2d 938, 946 (Tex.Cr.App. 1971); accord Tarpley v. State, 565 S.W.2d at 532; McDonald v. State, 513 S.W.2d 44, 46 (Tex.Cr.App. 1974). Therefore, even if counsel had been appointed in time to advise him of the right, Petitioner would have lost his right to an examining trial once the indictment was returned. Moreover, the indictment provided Petitioner with the guarantee of probable cause to prosecute that an examining trial would have provided. The Court concludes that, even if counsel represented Petitioner in time to have advised him of the right to an examining trial, Petitioner was not prejudiced either by the lack of advice or by the absence of an examining trial. Moreover, an examining trial is a creation of state law, the denial of which in itself presents no substantial federal question. Richardson v. State, 425 F.2d 1372, 1373 (5th Cir. 1970). The state court found that there were no controverted, previously unresolved facts material to the legality of Petitioner's confinement and further found that his application for writ of habeas corpus was totally without merit. Ex parte Allison, at 43. This Court must accept that finding unless it was based on an unreasonable determination of the facts in light of the evidence presented. Hill, 210 F.3d at 485. Petitioner has failed to show either deficient performance or prejudice. This ground for relief is without merit and should be denied.
Summary
Petitioner is lawfully restrained because he failed to prove that he has been denied a constitutionally protected interest. The state courts' determinations that Petitioner was not entitled to relief is not contrary to, or does not involve, an unreasonable application of clearly established federal law. Further, it is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED.