Opinion
3:01-CV-1351-M
July 2, 2002
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 filed on September 20, 2001, this case has been re-referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Preston Bernard Arnold is currently confined at the Coffield Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-JD) in Tennessee Colony, Texas. Respondent is the Director of the TDCJ-ID. The court has issued process in this case.
Statement of Case: Upon his pleas of guilty to two charges of aggravated assault (enhanced) and one charge of failure to stop and render aid (enhanced) in the 204th Judicial District Court of Dallas County, Texas, Cause Nos. F97-01475-PQ, F97-47449-SQ, and F97-47450-SQ, Arnold elected to have punishment assessed by a jury. On October 8, 1997, the jury assessed punishment at confinement for twenty-five years for the first aggravated assault, ten years for the second aggravated assault, and ten years for the failure to stop and render aid. On December 8, 1999, the Eleventh Court of Appeals at Eastland affirmed the judgments of conviction. Arnold v. State, 7 S.W.3d 832 (Tex.App. — Eastland 1999, pet. ref d). On March 15, 2000, The Texas Court of Criminal Appeals refused petitions for discretionary review.
As part of the same consolidated proceeding before a single jury, Arnold also pled guilty to a third aggravated assault charge alleged in No. F97-01225-PQ, which occurred on the same date as the other offenses and in which the jury assessed a term of 99 years. In a separate opinion, No. 11-97-00392-CR, filed on November 4, 1999, the Eleventh Court of Appeals reversed the trial court's judgment and remanded for a new sentencing proceeding because the trial court erred in not withdrawing sua sponte Petitioner's guilty plea. See Arnold v. State, 11-97-00392-CR (Tex.App.-Eastland, Nov. 4, 1999) (not reported). On remand, the jury reassessed punishment at 99 years imprisonment. A direct appeal from that conviction is presently pending before the Fifth Court of Appeals. See Arnold v. State, No. 05-01-01733-CR, http://www.courtstuff.com/FILES/05/01/05-011733.HTM (Docket sheet information generated on June 6, 2002).
On January 10, 2001, Petitioner filed three state applications for writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure, challenging the convictions in this case. Ex parte Arnold, 49, 437-01, at 2-25. On June 13, 2001, the Texas Court of Criminal Appeals denied the applications without written order. Id. at cover.
In his amended petition, filed on May 14, 2002, Petitioner presents four grounds for relief: (1) the jury panel did not represent a fair cross section of the community because Hispanics are systematically excluded from juries in Dallas County; (2) trial counsel's failure to object or request a burden of proof instruction regarding extraneous offenses amounted to ineffective assistance of counsel; (3) counsel's failure to object to the seating of Juror Rick Porter amounted to ineffective assistance of counsel; and (4) the selection of Juror Daron Pace, who allegedly had seen Petitioner a couple of times, rendered the jury selection process unconstitutional.
Arnold's original § 2254 petition presented the same four grounds for habeas relief alleged in his amended petition.
In response to the instant petition and this court's show cause order, Respondent filed an answer together with copies of Petitioner's prior state proceedings. Respondent asserts Petitioner has failed to exhaust his state remedies regarding the first and fourth grounds for relief, and that such claims are now procedurally barred from habeas corpus review. Respondent seeks denial of the remaining claims on the merits.
The Reporter's Record is cited as Statement of Fact (SF) preceded by the volume number, and followed by the page number.
Findings and Conclusions: Before addressing the merits of Petitioner's allegations, the court considers the lack of exhaustion/procedural default issue raised by Respondent. Federal jurisprudence has long required that a state prisoner must exhaust all available state remedies before seeking federal habeas relief. See Nobles v. Johnson, 127 F.3d 409, 419 (5th Cir. 1997); 28 U.S.C. § 2254 (b)(1)(A). To exhaust state remedies, a habeas petitioner must "fairly present" the substance of his claim to the state courts. Nobles, 127 F.3d at 420 (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)).
Petitioner has not adequately exhausted grounds one and four. After reviewing the art. 11.07 applications, it is clear that Petitioner neither presented ground four nor the factual scenario underlying ground one to the Texas Court of Criminal Appeals. As to the latter, the art. 11.07 applications alleged only a one-line argument: "the panel of jurors did not represent a fair cross section of the Community as required by the Constitution." See Ex parte Arnold, No. 49, 437-01, at 8, 16, and 24. The applications did not mention that Hispanics were systematically excluded; nor did they indicate that Petitioner sought to challenge the process for selecting petit jurors in Dallas County. See Amended petition at ¶ I. A claim is deemed to have been "fairly presented" in state court for purposes of the exhaustion doctrine only if the petitioner relies upon identical facts and legal theories in both of the state court proceeding and the action for federal habeas relief. Picard, 404 U.S. 270, 278; Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). The one-line argument alleged in the state applications did not place the state court on notice that the jury panel did not include the presence of one minority of the community, namely Hispanics. In light of the ambiguous and conclusory nature of the claim presented in the state applications, it is clear that ground one does not satisfy the requirement of Picard — i.e., that it rely upon the same facts and legal theory presented to the state court. A one-line argument that the jury panel was deficient because it did not represent a fair cross section of the community, is not the same as a claim challenging the systematic exclusion of Hispanics. Therefore, ground one remains unexhausted along with ground four.
If a petitioner has failed to exhaust state court remedies, and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, there is a procedural default precluding federal habeas review. Coleman v. Thompson 501 U.S. 722, 735 n. 1 (1991). Art. 11.07, § 4, Texas Code of Criminal Procedure, prohibits a petitioner from filing a successive state habeas application, unless the application alleges and establishes that the grounds asserted were not and could not have been raised in a first habeas application. See Ex parte Barber 879 S.W.2d 889, 891 (Tex.Crim.App. 1994). Abuse of the writ, under art. 11.07, § 4, qualifies as a procedural bar. See Fearance v. Scott 56 F.3d 633, 642 (5th Cir. 1995) (per curiam).
If the court required Petitioner to return to state court to satisfy the exhaustion requirement, the state court would apply the Texas abuse of the writ doctrine and dismiss a second state application. Petitioner argues that he could not have discovered the predicate of grounds one and four earlier due to his indigence and not having access to all the court's record. (Amended Petition, memorandum in support at 1). However, he was present in court to observe the racial make-up of the venire panel and also heard the comments of Juror Daron Pace in the course of voir dire examination and, thus, the factual bases for these grounds were known to him at the time he filed his art. 11.07 applications. Petitioner cannot satisfy art. 11.07 § 4(a)(1) which requires that "the factual or legal basis for [his claims] were unavailable to him when he filed his art. 11.07 application" on January 10, 2001. See Fearance, 56 F.3d at 642. Absent cause for the default and actual prejudice, which Petitioner does not allege or demonstrate, the procedural default rule precludes federal court review of grounds one and four. Coleman, 501 U.S. at 750-51; Murray v. Carrier 477 U.S. 478, 488 (1986).
The procedural bar also may be overcome by proof that a fundamental miscarriage of justice will result from application of the bar, but this requires an assertion of factual or actual innocence, which Petitioner does not make. See Glover v. Cain 128 F.3d 900, 904 n. 5 (5th Cir. 1997).
The court now addresses Arnold's grounds which are subject to review on the merits. In his second ground, Petitioner asserts counsel failed to request an instruction regarding burden of proof on extraneous offenses admitted during the punishment phase of the trial. To establish a violation of the Sixth Amendment right to effective assistance of counsel, a petitioner must make two showings: (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000). A court need not address both components of this inquiry if the defendant makes an insufficient showing on one. Strickland, 466 U.S. at 697.
During the punishment phase of the trial, the State offered evidence of two extraneous offenses: a physical assault on Arnold's estranged wife Jennifer which took place on Valentine's Day, one month before the offenses committed in this case, and a threatening phone call to her a week before the offenses in this case. 3 SF at 150-51. The police were called following the first incident, but no charges were filed. Id. Regarding the second incident, Jennifer testified that she called the police following the threatening phone call. Id. at 152-53. Approximately ten minutes later, she saw Petitioner sitting in his car down the street, watching her father's house. Id. Petitioner denied the beating on Valentine's Day, and testified that he was visiting friends when Jennifer claimed to have seen him in his car down the street from her father's house. 4 SF at 97-103. The trial court did not instruct the jury regarding the burden of proof applicable to the two extraneous offenses, nor did defense counsel request such instruction or object to its omission from the charge. Defense counsel does not recall whether his decision not to object or request a reasonable-doubt instruction was based on trial strategy or simple omission." Ex parte Arnold, No. 49, 437-01, at 39.
Tex. Code Crim. Pro. art. 37.07, § 3(a) (Vernon 2002) provides as follows: [E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
(emphasis added).
At the time of Petitioner's trial, the trial court would have been required to give the reasonable-doubt instruction had counsel requested it. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App. 1996) (holding that the jury must determine whether the State has proven any extraneous offenses beyond a reasonable doubt during punishment, and that the trial court should instruct jury to that effect when requested by counsel). In Huizar v. State, subsequent to the denial of discretionary review in this case, the Court of Criminal Appeals held that a trial court is statutorily required to instruct the jury sua sponte on the burden of proof for extraneous offenses admitted during the punishment phase of trial. 12 S.W.3d 479, 483-85 (Tex.Crim.App. 2000). However, it is only violations of federal law — not violations of State law — which constitute grounds for relief in a § 2254 petition. Moreover, "[i]mproper jury instructions in state criminal trial do not generally form the basis for federal habeas relief" Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). See also Galvan v. Cockrell, ___ F.3d ___, 2002 WL 1225100, *3-4 (5th Cir. June 6, 2002) (discussing habeas standard of review for improper jury instructions).
The attorney's affidavit states that "a Rule 105 limiting instruction [was] included in the charge." Ex parte Arnold, No. 49, 437-01, at 39. However the court's charge in the record does not contain such an instruction.
Assuming arguendo that counsel was deficient in failing to request the reasonable-doubt instruction, Petitioner cannot show that he was prejudiced by counsel's action. To show prejudice in the sentencing context, a petitioner must demonstrate that the failure to object or to request a reasonable doubt instruction created a reasonable probability that his sentence would have been less harsh. See Glover v. United States 531 U.S. 198, 200 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice'); Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993) (cited in Glover). The record reflects Petitioner pled guilty to three aggravated assaults and a failure to stop and render aid, all of which occurred on the same day.
Aggravated assault is a second degree felony under the Texas Penal Code. Tex. Penal Code § 22.02(b). Failure to stop and render aid is a third degree felony under Texas law. All three indictments alleged a prior felony conviction for enhancement of punishment. Arnold entered pleas of "true" to the enhancement paragraphs. Tex. Penal Code § 12.42 (b) enhances the punishment provided for a second degree felony when a defendant has previously been convicted of a felony. Likewise, a prior felony conviction promotes punishment on a third degree felony to that provided for a second degree felony. Id. § 12.42(a). With the prior convictions alleged in the aggravated assault indictments and upon his pleas of "true" Arnold was exposed to a penalty range of life imprisonment or a term of years not more than 99 nor less than five plus an optional fine of not to exceed $10,000 in each case. Tex. Penal Code § 12.32. The punishment range for his conviction for failure to stop and render aid was a sentence of not more than twenty years or less than two years with an optional fine not to exceed $10,000. Tex. Penal Code § 12.33. Given the nature of the offenses to which Petitioner pled guilty and the fact that the sentences imposed were in the low to mid-ranges of the statutory punishments available, he cannot establish any prejudice based upon his counsel's alleged infirm representation — i.e., that there is a reasonable probability that but for trial counsel's error the jury would have imposed a lower sentence. Cf Spriggs, 993 F.2d at 88-89 ("In deciding whether prejudice occurred, a court should consider a number of factors: the actual amount of the sentence imposed on the defendant by the sentencing judge or jury; the minimum and maximum sentences possible under the relevant statute or sentencing guidelines, the relative placement of the sentence actually imposed within that range, and the various relevant mitigating and aggravating factors that were properly considered by the sentencer.").
In his third ground, Petitioner alleges counsel failed to object to the seating of Juror Rick Porter. Specifically he alleges that Juror Porter violated the rules of the court when he discussed the case with his wife and admitted to the trial judge that he "doubt[ed] . . . his ability to judge impartially." (Amended petition at 5).
Petitioner alleges for the first time in his amended petition that counsel failed to "conduct an independent investigation of the State's witnesses, and did not visit the scene of the alleged crime." (Amended Petition at 5). Insofar as Petitioner seeks to raise the above grounds in this habeas proceeding, his claims are unexhausted and procedurally barred because he failed to plead the above claims in his state habeas applications. See Discussion supra regarding grounds one and four.
The voir dire of the jury panel took place on October 6, 1997. In the course of the examination, the record reflects only three brief colloquies between counsel and Mr. Porter. 1 SF at 47-48, 64 and 115. The only response of any significance was his disclosure that his wife had been arrested for assault. Id. at 47. After the jury was selected and seated, the punishment hearing began on October 7, 1997. However, before any evidence was presented Mr. Porter was called in separately and was questioned by the court and counsel. 3 SF 17-23. In response to the questioning Porter advised that his wife reminded him on the previous evening that on a prior occasion he and she had talked about the offenses committed by Petitioner. Further in response to the questions Porter stated that this circumstance would not affect his ability to decide punishment solely on that which was presented in the punishment proceeding and that he would be able to consider the full range of punishment options. At the conclusion of the proceeding outside the presence of the remainder of the petit jury, the court instructed Porter not to discuss with his fellow jurors anything that he might have heard from sources other than those presented in the punishment hearing.
Subsequently, Porter advised that it was his wife from a previous marriage. 3 SF at 21-22.
Arnold has presented absolutely nothing which calls into question the accuracy of Porter's affirmation that he would decide the issue of punishment solely on the evidence presented in court or which otherwise shows that Porter was less than an impartial member of the jury in assessing punishment. Therefore, there was nothing to support a challenge to his participation on the jury and counsel cannot be faulted for failing to lodge a frivolous objection. See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) ("counsel is not deficient for failing to press a frivolous point").
The State court's denial of habeas relief on the basis of ineffective assistance of counsel did not result in a decision that involved an unreasonable application of clearly established Federal law. See 28 U.S.C. § 2254 (d)(1). Grounds two and three should be denied.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court deny the petition for writ of habeas corpus.
The Clerk will mail a copy of this recommendation to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.