Opinion
Civil Action No. 4:05-CV-0356-Y.
October 26, 2005
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 John Clifton Anderson, TDCJ-ID #1069411, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Iowa Park, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On April 19, 2001, Anderson was charged by indictment with theft of property of the value of $20,000 or more but less than $100,000 in Cause No. 14219 in the 43rd Judicial Court of Parker County, Texas. (State Habeas R. at 78.) He was reindicted for the offense in Cause No. 14482 on October 18, 2001. ( Id. at 85-86.) The new indictment included multiple enhancement allegations. ( Id.) Anderson elected to proceed pro se at trial and was appointed standby counsel. (Clerk's R. at 23.) On November 15, 2001, a jury found Anderson guilty of the offense and true to the enhancement allegations and assessed his punishment at life imprisonment. (State Habeas R. at 83.) Anderson appealed his conviction, but the Second District Court of Appeals affirmed the trial court's judgment on May 15, 2003. Anderson v. Texas, No. 2-02-060-CR, slip op. (Tex.App.-Fort Worth May 15, 2003) (not designated for publication). The Texas Court of Criminal Appeals refused Anderson's petition for discretionary review on November 19, 2003. Anderson v. Texas, PDR No. 1146-03. On April 21, 2004, Anderson filed a state application for writ of habeas corpus raising the claims presented herein, which was denied by the Texas Court of Criminal Appeals without written order on January 19, 2005. Ex parte Anderson, No. 59,235-01, at cover. Anderson filed this federal petition in the Wichita Falls Division on May 24, 2005, and the action was transferred to this division by order dated June 6, 2005. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
The state's evidence at trial established that Anderson was a truck driver for Safeway Transport, Inc. (Safeway), a coast-to-coast transportation service. (4Reporter's R. at 24, 36.) Safeway tracked its drivers and their loads by a global positioning system (GPS). ( Id. at 30.) Safeway was contracted to deliver 1000 Toshiba laptop computers from California to Indiana. ( Id. at 36-37.) On or about February 1, 2001, the load was placed and sealed on a truck assigned and driven by Anderson. ( Id. at 36-37.) A day or two later, Safeway's dispatcher noticed that Anderson was not calling in as required, and GPS indicated that Anderson's truck was parked at a Petro truck stop in Weatherford, Texas. ( Id. at 38, 63-65.) The company sent a replacement driver to the location of the truck. ( Id. at 39, 195-96.) When the replacement driver found the truck, there was no seal on the trailer door. ( Id. at 39, 197-98) A Weatherford police officer responded to a dispatch of a possible theft and found Anderson's ID card, an empty computer box, a Wal-Mart receipt for computer accessories and software, and a newspaper in the cab of the truck and an empty pallet and shrink-wrapping on the floor in the trailer. ( Id. at 66-69; 6Reporter's R., State's Exhibit 3b.) The classified section of the newspaper showed three vehicles had been circled. (4Reporter's R. at 68; 6Reporter's R., State's Exhibit 3a.) Anderson was identified by one of the vehicle owners as the person who arranged to buy his van for $1300 and to pay him $100 to deliver it to the truck stop on or about February 4, 2001. (4Reporter's R. at 88-95, 144-46, 167.) After the transaction, Anderson offered to sell the van owner a Toshiba laptop computer for $250, but he declined. ( Id. at 96, 98.) Anderson admitted to purchasing the van to law enforcement. ( Id. at 169.) Anderson was also identified as the person who arranged to have an escort from a dating service come to his hotel room. ( Id. at 103, 114-21, 156-61.) Anderson asked the escort to leave after several hours and offered her one of the Toshiba laptops. ( Id. at 121-24.) She later pawned the computer in Dallas. ( Id. at 125-26, 148-50, 154-65; 6Reporter's R., State Exhibit 8.) The serial numbers of the empty box found in the truck at the scene and of the pawned computer matched two of those listed as stolen from the shipment. (4Reporter's R. at 147-54, 163-65; 6Reporter's R., State's Exhibit 6.) When the shipment reached its destination, it was determined that forty laptops were missing valued at almost $60,000. (4Reporter's R. at 39-40, 203-05, 211; 6Reporter's R., State's Exhibits 4, 5.) Anderson did not testify or call any witnesses.
D. ISSUES
Anderson raises the following issues in four grounds:
(1) The trial court erred by (a) granting him only three hours of law library per week, (b) failing to rule on pending motions before trial, (c) failing to properly and timely admonish him about the perils of self-representation, (d) failing to grant his request for a new jury pool, and (e) receiving an incorrect verdict form outside his presence and the presence of the jury;
(2) He was denied due process when standby counsel allowed postponement of his trial; and
(3) The evidence was insufficient to prove one or more elements of the offense. (Petition at 7-9.)
E. RULE 5 STATEMENT
Dretke does not contest that Anderson has sufficiently exhausted his state remedies as required by 28 U.S.C. § 2254(b)(1). (Resp't Answer at 6.)F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
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). 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.
Further, 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. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5th Cir. 2001). Factual determinations by a state court are presumed correct absent clear and convincing evidence to the contrary, and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2), (e); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams, 529 U.S. at 399. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion, as here, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Trial Court Error
Anderson claims he was denied access to the courts by the trial court's verbal order restricting him to three hours per week in the jail law library to prepare for trial. (Pet'r Memorandum at 20; Clerk's R. at 1, 36-37.) Anderson misrepresents the trial court's order. Apparently, according to jail standards, an inmate is allowed two hours of law library access per week. (Clerk's R. at 25; Supp. Reporter's R. at 15.) The record reflects that, at Anderson's request, the trial court granted him a minimum of three hours per week in the law library and any time over three hours upon written request. (Clerk's R. at 1; Supp. Reporter's R. at 14-16.) Law library access is not a fundamental constitutional right afforded criminal defendants. See Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996). The constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons legally trained. See Bounds v. Smith, 430 U.S. 817, 828 (1977). If he receives either, his rights have been upheld. Here, Anderson had both adequate access to the jail's law library and standby counsel as an adviser and to assist on matters that he could not handle. (Supp. Reporter's R. at 14-15 State's Exhibit 1.)
Anderson claims the trial court erred by failing to rule on pending motions before trial. (Pet'r Memorandum at 13-14.) The record does not support his assertion. The record reflects that on July 5, 2001, Anderson filed a "Motion for Discovery and Inspection," a "Motion to Dismiss for Lack of Jurisdiction," and a "Motion to Quash Indictment." (Clerk's R. at 12, 15, 18.) In a hearing conducted on August 9, 2001, the trial court granted the first motion, but denied the second and third motions. ( Id. at 1; Supplemental Reporter's R., Pretrial Hearing, at 5, 6, 10.) On August 16, 2001, Anderson filed a "Motion for Clarification" of the trial court's order allowing him a minimum of three hours law library access, a "Motion for Copy Court Record," and a "Motion for Exclusion of Witnesses." (Clerk's R. at 36, 41-42.) Anderson's standby counsel was notified by the court on August 20, 2001, that the trial court would take no action on these motions. ( Id. at 44.) Finally, on November 8, 2001, Anderson filed a second "Motion to Quash Indictment" that was denied by the trial court after a hearing on the same day. ( Id. at 62; 2Reporter's R. at 25-26.)
Anderson claims the trial court erred by failing to properly and timely admonish him under Faretta v. California, 422 U.S. 806, 835 (1975). In Faretta, the Supreme Court held that a criminal defendant has a constitutional right under the Sixth Amendment to proceed without counsel in a state criminal case when he voluntarily and intelligently elects to do so having been made aware of the dangers and disadvantages of self-representation. Id. at 835. At his arraignment on May 2, 2001, Anderson informed the trial court of his intent to represent himself. At that time, the court did not admonish Anderson of the dangers and disadvantages of doing so, however, on July 6, 2001, the court appointed standby counsel to assist Anderson. (Clerk's R. at 23.) Anderson was reindicted on October 18, 2001, and arraigned on the reindictment before a visiting judge on October 23, 2001. (1Reporter's R. at 4-11.) At that time, Anderson was advised of the various pitfalls of self-representation in accordance with Faretta and signed a form entitled "Judicial Admonishments and Written Wavier of Right to Counsel." (Clerk's R. at 58-59.) The state appellate court held there was no Faretta error because Anderson was appointed standby counsel before the time his earliest motions were heard. See Anderson, No. 2-02-060-CR, op. at 2-4. Under Texas case law, Faretta admonishments are not required when a defendant is appointed and has access to standby counsel. See Walker v. Texas, 962 S.W.2d 124, 125-26 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd); Robertson v. Texas, 934 S.W.2d 861, 864-65 (Tex.App.-Houston [14th Dist.] 1996, no pet.). Anderson has failed to demonstrate that the appellate court's decision is contrary to, or an unreasonable application of, federal law on the issue. Although Anderson was not admonished under Faretta immediately upon his assertion of the right to represent himself, he was appointed standby counsel roughly two months later and was properly and timely admonished under Faretta at his arraignment on the reindictment. At that time the trial court admonished Anderson in open court, and in writing, and questioned Anderson about his education and courtroom experience. (1Reporter's R., Arraignment, at 5-10.). Anderson informed the court that he was a certified paralegal, was aware of relevant state law, and had represented himself in other matters. Under these circumstances, the trial court's failure to admonish Anderson when he first asserted his right of self-representation does not warrant habeas relief.
Anderson claims the trial court erred by failing to grant his request for a new jury pool when the pool was tainted by the prosecution's comments regarding prior convictions and the effect on the range of punishment if a defendant were found to have a prior felony conviction(s). (Pet'r Memorandum at 9-12; 3Reporter's R. at 37-38, 41-48.) The record does not reflect, however, that Anderson ever made such a request. Furthermore, under state law, a prosecutor may inform the jury panel of the range of punishment applicable if the state were to prove a prior conviction(s) for enhancement purposes so long as the prosecutor does not inform the jury of any of the specific allegations contained in the enhancement paragraph of a particular defendant's indictment. See Frausto v. State, 642 S.W.2d 506, 509 (Tex.Crim.App. 1982). The prosecutor's voir dire comments in this case were well within the permissible bounds, and the trial court gave sua sponte corrective instructions in an effort to mitigate the effect of the remarks.
Finally, Anderson claims the trial court erred by receiving an incorrect verdict form outside his presence and the presence of the jury. (Pet'r Memorandum at 15-16.) The record reflects that the trial court was informed by the jury that the form was signed in two different spaces in error. (4Reporter's R. at 245-46.) With the parties and the jury present, the court returned the form to the jury with instructions to correct the form and mark out the portion that was incorrect. ( Id.) The procedural defect involved here is purely a matter of state, not federal, law, and therefore is, in and of itself, not cognizable on federal habeas corpus review. See Sharp v. Johnson, 107 F.3d 282, 290 (5th Cir. 1997). A federal court's review on a petition for habeas corpus is limited because we sit not to retry state cases de novo, but rather to examine the proceedings in the state court to determine whether a violation of federal constitutional standards occurred. Milton v. Wainwright, 407 U.S. 371, 377 (1972). Although Anderson alleges he was denied his constitutional right to a fair and impartial trial under the Fifth and Fourteenth Amendments as a result of the trial court's actions, he cites to no authority supporting his argument, and none is found. Furthermore, even if he could demonstrate a constitutional error as a result of the trial court's procedures in this instance, the error is considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Anderson cannot making such a showing in light of the fact that the jury was polled after the verdict was read, and each juror indicated that he or she had voted guilty. ( Id. at 247-48.)
3. Continuance
Anderson claims he was denied due process when his standby attorney allowed postponement of his trial on October 8, 2001, absent any authority or consent from him. (Pet'r Memorandum at 6-8.) The record reflects that the trial court originally scheduled Anderson's case for trial on September 10, 2001, and then rescheduled the case for trial on October 8, 2001. (Clerk's R. at 8, 27.) The case eventually went to trial on November 13, 2001. The record is silent, however, as to the reason for the delay from October 8 to November 13. In the state's reply to Anderson's state habeas application, the state asserted that Anderson's trial was postponed because it was "passed" by the trial court in favor of trying another case. (State Habeas R. at 60.) Assuming this assertion to be true, a violation of Anderson's constitutional right to represent himself is not implicated. As in the case of a federal district court, a state trial court has the inherent power to control the disposition of cases on its own docket. See United States v. Colomb, 419 F.3d 292, 299 (5th Cir. 2005); Marquez v. Texas, 921 S.W.2d 217, 223 (Tex.Crim.App. 1996).
4. Sufficiency of the Evidence
Anderson claims he was denied due process because the evidence adduced at trial was insufficient to support his conviction. (Pet'r Memorandum at 19.) The state appellate court, applying Jackson v. Virginia, 443 U.S. 307, 319 (1979), determined that the evidence was legally sufficient to support a finding that Anderson committed the offense as charged. Anderson, No. 2-02-060-CR, op. at 5-8. An independent review of the evidence does not indicate that the evidence was insufficient to support the jury's verdict or that the state court's application of the Jackson standard was unreasonable in light of the evidence.
II. RECOMMENDATION
Anderson'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 November 16, 2005. 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 November 16, 2005, 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.