Opinion
No. 3:01-CV-0513-D
June 28, 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 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:
FINDINGS AND CONCLUSIONS I. Background
Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On November 20, 1996, a jury convicted petitioner of "indecency with a child under the age of 17." Statement of Facts, Vol. III at 210 [hereinafter cited as SF-volume # at page]. The jury set punishment at twenty years imprisonment and a $10,000 fine. SF-IV at 279. The trial court imposed the recommended punishment. Id. at 280. Lynn Richardson represented petitioner at trial. SF-III at 97. Katherine Drew represented him on appeal. (See Appellant's Brief contained within state court record at cover.)
On February 1, 1999, the Court of Appeals for the Fifth District of Texas at Dallas affirmed petitioner's conviction on direct appeal. Ashanti v. Stare, No. 05-96-01920-CR, 1999 WL 39041, at *1 (Tex.App. — Dallas Feb. 1, 1999, pet. ref'd) (not designated for publication). On July 12, 2000, the Texas Court of Criminal Appeals denied petitioner's motion for leave to file a writ of prohibition. Ex Parte Ashanti, No. 46,028-01, slip op. at 1 (Tex.Crim.App. July 12, 2000). On February 21, 2001, that court denied petitioner's state petition for writ of habeas corpus without written order. Ex Parte Ashanti, No. 46,028-02, slip op. at 1 (Tex.Crim.App. Feb. 21, 2001).
In March 2001, petitioner filed the instant petition for federal habeas relief. Respondent thereafter filed an answer and provided the state-court records.
Substantive Issues: Petitioner claims he is being held unlawfully on the following grounds: (1) the trial court lacked jurisdiction to convict him, because the State had untimely filed the indictment against him in violation of TEX. CODE CRIM. PROC. ANN. arts. 1.141, 25.01, 27.11, 27.12, 28.061, and 32.01; (2) he was denied due process by being convicted solely on the uncorroborated testimony of a single witness in violation of the ex post facto clause of the United States Constitution and in violation of TEX. CODE CRIM. PROC. ANN. arts 37.07 and 38.07; (3) his trial attorney rendered ineffective assistance in that she (a) failed to request an acquittal after the State failed to offer either evidence or outcry or corroboration of the victim's testimony; (b) failed to seek dismissal of the untimely indictment filed against him; (c) failed to seek dismissal of the indictment for want of prosecution; (d) failed to file a motion in limine; and (e) failed to request DNA testing; and (4) his appellate attorney rendered ineffective assistance. (Pet. for Writ of Habeas Corpus (Pet.) 7-8.)
Article 1.141 concerns waiver of indictment. Article 25.01 concerns delivery of a certified copy of the indictment to the accused. Articles 27.11 and 27.12 grant defendants ten days to file written pleadings. Article 32.01 relates to the dismissal of an indictment that is not timely presented against the defendant. Article 28.061 relates to the discharge of a defendant due to a speedy trial violation.
Exhaustion: Respondent contends that petitioner has not sufficiently exhausted his state remedies with respect to Claim 1 to the extent that claim relates to the cited state statutes; with respect to Claim 2 to the extent that claim relates to Article 37.07; and with respect to Claim 3 to the extent it asserts a claim that trial counsel rendered ineffective assistance by failing to prevent a twenty-two year old conviction from being used as an enhancing offense. (Answer at 8-9, 11-12.) Although respondent addresses the merits of these claims to various degrees, she argues that they are procedurally barred from federal habeas review to the extent noted above. She does not seek dismissal for the failure to exhaust, but rather on the related ground of procedural bar. Alternatively, she seeks dismissal of the claims on the merits.
II. Procedural Bar
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows "cause" for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. See id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
In this instance, respondent urges the Court to rind certain aspects of Claims 1 through 3 procedurally barred for an alleged failure of petitioner to present them to the Texas Court of Criminal Appeals either in his PDR or state writ. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claims procedurally barred. Id. The Court, nevertheless, hesitates to broadly apply the procedural bar to the extent suggested by respondent.
With respect to Claim 1, respondent asserts that petitioner failed to complain about the cited state statutes in his state writ. Petitioner, however, specifically mentioned Article 1.141 in his state writ. See Partial S.H. Tr. at 12. Petitioner also specifically mentions the right to a speedy trial in his state writ. id. at 13. As summarized by respondent, furthermore, the cited state statutes "concern the validity of indictments and the requirement for a speedy trial." (Answer at 8-9.) Petitioner bases his alleged jurisdictional defect on the invalidity of an alleged untimely indictment. The Court thus declines to find any of Claim 1 procedurally barred. Petitioner sufficiently raised the jurisdictional issue to the Texas Court of Criminal Appeals.
"S.H. Tr." denotes the state habeas records. "Partial" indicates the designation on the cover page.
With respect to Claim 2, respondent asserts that petitioner failed to present that aspect of Claim 2 that deals with Article 37.07 to the Texas Court of Criminal Appeals. She thus urges the Court to find that aspect of Claim 2 procedurally barred. To the extent petitioner indeed relies upon Article 37.07 as a basis for Claim 2, the Court finds that he did not present that aspect of the claim to the Texas Court of Criminal Appeals. Were this Court to require him to do so, the claim would be subject to dismissal under the Texas abuse-of-the-writ doctrine, TEX. CODE CRIM. PRO. ANN. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). "[A]rticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and . . . has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law." Id. To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate "(1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524 (quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)).
As discussed later, the Court has grave doubts that petitioner even meant to raise a claim based upon Article 37.07. The Court, nevertheless, deems it prudent to address the procedural bar such claim would face, if petitioner indeed raises it in the instant federal petition.
Texas also has an abuse of writ doctrine specifically applicable to capital cases. See Tex. Code Crim. P. Ann. art. 11.071, § 5(a). No material difference exists between the rules or their analysis. Emery v. Johnson, 139 F.3d 191, 195 n. 3 (5th Cir. 1997). The Court may thus freely cite to either capital or non-capital cases that address the abuse of writ doctrine.
Petitioner has shown no cause for his failure to present the Article 37.07 aspect of Claim 2 to the Texas Court of Criminal Appeals. He makes no attempt to explain that failure. The Court finds no adequate reason for the failure.
Petitioner has also shown no actual prejudice as a result of the alleged violation of federal law. Nor has he demonstrated a need to prevent a miscarriage of justice. The latter exception is "confined to cases of actual innocence, 'where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). Petitioner has not shown that, factually, he did not commit the crime for which he was convicted. He has thus not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on the Article 37.07 aspect of his second claim. For that reason, the Court may not review that aspect of Claim 2.
With respect to Claim 3, respondent urges the Court to find procedurally barred a claim that counsel rendered ineffective assistance by failing to prevent a twenty-two year old conviction from being used as an enhancing offense. The Court declines to find that petitioner asserts such a claim in the instant federal petition. Nothing in the federal petition indicates that petitioner asserts such a claim. Without elaboration, petitioner alleges that his trial attorney failed to file a motion in limine. In such instances, the Court often looks to the matters raised in state court to determine the parameters of the federal claim. The state writ contains no claim that trial counsel failed to prevent the remote conviction from being used as an enhancing offense. The Court thus cannot reasonably construe the federal petition as containing such claim. Consequently, the Court need not determine whether such claim is procedurally barred. Such claim is simply not raised in the instant federal petition.
Except for the small aspect of Claim 2 that the Court has found procedurally barred, the Court will review all claims raised in the instant federal petition, under the standard of review established on April 24, 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217.
III. Standard of Review
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition. 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.), cert. denied, 531 U.S. 849 (2000).
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.), cert. denied, 122 S.Ct. 194 (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), cert. denied, 532 U.S. 949 (2001). 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.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (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).
On direct appeal, petitioner argued that the evidence was factually insufficient to support his conviction and that the trial court erred in admitting evidence of an extraneous offense at punishment. Ashanti v. State, No. 05-96-01920-CR, 1999 WL 39041, at *1 (Tex.App.-Dallas Feb. 1, 1999, pet. ref'd) (not designated for publication). Other than the Article 37.07 aspect of Claim 2, petitioner, furthermore, raised each of his instant federal claims in his state writ. See Partial S.H. Tr. at 2-24. The trial court submitted findings to the Texas Court of Criminal Appeals regarding the state petition. Supp. S.H. Tr. at 3-6. It found no violation of petitioner's due process rights. Id. at 3. It deferred to the appellate court's decision with respect to the sufficiency of the evidence to convict petitioner. Id. at 4. The Texas Court of Criminal Appeals denied the state writ without written order. Ex Parte Ashanti, No. 46,028-02, slip op. at 1 (Tex.Crim.App. Feb. 21, 2001). In Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). In this instance, therefore, the state court rejected the instant claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254 (d) thus apply.
IV. Examination of the Issues
Substantive Claims: Petitioner claims he is being held unlawfully because (1) the trial court lacked jurisdiction to convict him due to an untimely indictment; (2) he was denied due process by being convicted solely on the testimony of a single witness; (3) his trial attorney rendered ineffective assistance; and (4) his appellate attorney rendered ineffective assistance. (Pet. at 7-8.)
A. Untimely Indictment
Petitioner claims that the trial court lacked jurisdiction to convict him, because the State had untimely filed the indictment against him in violation of TEX. CODE CRIM. PROC. ANN. arts. 1.141, 25.01, 27.11, 27.12, 28.061, and 32.01. Petitioner sufficiently raised this jurisdictional issue in his state writ. The Texas Court of Criminal Appeals denied that writ. It thus, at least implicitly, found the indictment sufficient to confer jurisdiction on the trial court.
"The question whether a defective state indictment confers jurisdiction on the state trial court is a matter of state law." McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994). "The sufficiency of a state indictment is not a matter for federal habeas corpus review unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Alexander v. McCotter, 775 F.2d 595, 598 (1985). Federal courts, nevertheless, will not consider claims that a state indictment is insufficient to confer jurisdiction upon the trial court when the jurisdictional issue "was squarely presented to the highest court of the state" and it can reasonably be inferred that court passed on the merits of the jurisdictional claim. Id. at 598-99. In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). In this instance, the Texas Court of Criminal Appeals passed on the merits of the jurisdictional claim when it denied petitioners s state writ. It implicitly found the trial court had jurisdiction over petitioner's case. This Court will not review that implicit finding. Consequently, this Court will not consider the claim that the trial court lacked jurisdiction to convict petitioner due to an untimely indictment filed against him in violation of state law. This Court, furthermore, need not address the specific alleged violations of state law.
B. Lack of Corroboration
Petitioner claims that he was denied due process when the State convicted him on the testimony of a single witness in violation of the Ex Post Facto clause of Article I, section 10 of the United States Constitution and in violation of Texas law codified at TEX. CODE CRIM. PROC. ANN. arts. 37.07 and 38.07. The Court has found this claim procedurally barred to the extent it is based upon Article 37.07. The record, furthermore, simply does not support the claim to the extent it relates to Article 38.07.
The Court, nevertheless, notes that the fact that petitioner was convicted on the testimony of the complainant alone has no apparent relevancy to Article 37.07. It thus appears likely that the reference to Article 37.07 is merely a typographical error and not truly raised in the instant federal petition. In any event, the Court would find the claim conclusory to the extent it relates to Article 37.07 and not procedurally barred. Conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
The State indicted petitioner of indecency with a child younger than seventeen years old. TR at 3 (True Bill of Indictment). It alleged that such indecency occurred on or about July 28, 1995. Id. A jury convicted petitioner of that offense. SF-III at 210. Under Texas law in existence at that time of petitioner's offense, such allegation could result in a supportable conviction merely by the uncorroborated testimony of a victim who was younger than eighteen. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 2001). The state legislature amended the statute in 1993 to increase the age of the victim from fourteen to eighteen. Loredo v. State, 32 S.W.3d 348, 352 (Tex.App.-Waco 2000, pet. ref'd). Although retroactively applying Article 38.07 would violate the constitutional prohibition against ex post facto laws, see Carmell v. Texas, 529 U.S. 513, 530-31 (2000), no one has applied Article 38.07 retroactively against petitioner. The State merely applied the statute in effect when petitioner committed his offense. There is no ex post facto violation in such instances. Petitioner was not denied due process when the State convicted him on the uncorroborated testimony of a single witness.
"TR" denotes the trial records.
To the extent, this claim challenges the legal sufficiency of the evidence, the Court finds the state disposition of the claim consistent with Jackson v. Virginia, 443 U.S. 307 (1979), the United States Supreme Court decision that governs such claim. "A criminal defendant has a federal due process right to be convicted only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense." Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal courts, nevertheless, have extremely limited habeas review of claims based on the sufficiency of the evidence. When reviewing such claims, the relevant question "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. Courts must apply this standard "with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16.
When "faced with a record of historical facts that supports conflicting inferences [courts] must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326. Under Jackson, furthermore, "the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). The trier of fact "is solely responsible for determining the weight and credibility of the evidence." United States v. Ramirez, 233 F.3d 318, 320 (5th Cir. 2000). Courts view "any required credibility determinations in the light most favorable to the guilty verdict." United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000), cert. denied, 532 U.S. 959 (2001). They do not "second-guess the weight or credibility given the evidence." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).
The standard of review enunciated in Jackson applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998). Federal courts, furthermore, apply the "standard looking to the state's substantive law, giving great weight to the state court's determination." Miller v. Johnson, 200 F.3d 274, 286 (5th Cir.), cert. denied, 531 U.S. 849 (2000). State statutes and case law bind the courts in their determination of the elements of an offense. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). "Jackson requires . . . that the review occur with explicit reference to the substantive elements of the criminal offense as defined by state law." Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n. 16). On federal habeas review this Court should only determine "whether the evidence was constitutionally sufficient to convict [petitioner] of the crime charged." Id. at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)).
In this instance, the relevant indictment charges as follows:
ISMAIL SHARIF ASHANTI, defendant, on or about the 28TH day of JULY A.D. 1995 in the County of Dallas and said State, did unlawfully, did [sic] then and there knowingly and intentionally expose his genitals to [the complainant], a child then younger than 17 years and not then the spouse of the defendant, knowing that the complainant was present, with intent to arouse and gratify the sexual desire of the defendant.
TR at 3. Under Texas law, furthermore, a person commits indecency with a child if, with a child younger than seventeen and not the person's spouse, he exposes his genitals, knowing the child is present with the intent to arouse or gratify the sexual desire of any person. See TEX. PENAL CODE ANN. § 21.11(a)(2)(A) (Vernon 1994). "[T]he requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances." McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981). The testimony of the child victim alone is sufficient evidence to support a conviction for indecency with a child. Bousquet v. State, 47 S.W.3d 131, 137 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd).
Petitioner has failed to carry the heavy burden imposed by 28 U.S.C. § 2254 (d). A reasonable trier of fact could conclude that he exposed his genitals to the complainant with the intent to arouse or gratify himself. Although the parties presented conflicting evidence as to guilt at trial, the evidence, nevertheless, supports the verdict. This Court must view the evidence in a light most favorable to the prosecution. It presumes that the trier of fact resolved all conflicting inferences suggested by the evidence in favor of the prosecution and defers to that resolution. It presumes the trier of fact made whatever credibility determinations necessary to support the verdict.
In this instance, the child complainant testified that, when she was twelve years old, petitioner, her former stepfather, knowingly exposed his penis in her presence and began to stroke it. SF-III at 108-09, 112, 115-16, 120. Petitioner testified in his own defense and denied committing the offense. Id. at 182-83. He speculated that the complainant fabricated the story so as to break up his marriage to her mother, because he was too strict. Id. at 190.
Although petitioner denied committing the offense, the jury chose to believe the complainant. The testimony of the complainant provides legally sufficient evidence to support the conviction. Her testimony supports a finding that petitioner knowingly exposed his genitals to a child under the age of seventeen and not his spouse with the intent to arouse or gratify himself. One can reasonably infer from the testimony that petitioner intended to arouse or gratify himself, when he began to stroke his penis.
In this instance, the decision of the state court is consistent with Supreme Court precedent. The decision involved no unreasonable application of such precedent. The adjudication of the claim did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court. Petitioner is entitled to no federal habeas relief on this claim.
C. Assistance of Trial Counsel
Petitioner alleges that his trial attorney rendered ineffective assistance when she failed: (1) to request acquittal due to his conviction being based on the testimony of a single witness; (2) to procure dismissal of the untimely filed indictment; (3) to procure dismissal of the indictment for want of prosecution; (4) to file a motion in limine; and (5) to request DNA testing. (See Pet. at 7.)
Petitioner raised these claims in his state writ. The state disposition of the ineffective assistance claims appears consistent with existing precedent of the United States Supreme Court. Such disposition involves no unreasonable application of clearly established precedent of the United States Supreme Court. Nor does it appear to be based upon any unreasonable determination of the facts in light of the evidence presented.
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).
To determine whether counsel's performance is 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.
To establish prejudice, a petitioner must show that "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.
Petitioners must "affirmatively prove prejudice." Id. at 693. To establish prejudice, they must "show the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented [at trial]," confidence in the trial's outcome would be undermined. See Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Petitioner makes two claims that his trial attorney rendered ineffective assistance by failing to procure dismissal of the indictment. Petitioner, however, has demonstrated no prejudice from these alleged deficiencies of counsel. The Court, furthermore, finds these claims conclusory. Petitioner provides no support for them. Claiming that an attorney failed to procure the dismissal of an indictment, without more, is insufficient to find that the attorney rendered ineffective assistance. Petitioner does not demonstrate how the indictment was untimely filed or why counsel should have procured its dismissal for an alleged failure to prosecute. Although the Court liberally construes the claims of pro se litigants, it does not construct claims for them. See Johnson v. City of Port Arthur, 892 F. Supp. 835, 840 (E.D. Tex. 1995) (citing Haines v. Kemer, 404 U.S. 519, 520 (1972)). Petitioners must provide some facts to support their claims. Petitioner here has not supported these claims. Nor has he made any attempt to show that any motion to dismiss would have created a reasonable probability that the indictment against him would have been dismissed with prejudice to its refiling. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000). Attorneys, furthermore, are "not required by the Sixth Amendment to file meritless motions." United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
Petitioner also alleges that counsel failed to request his acquittal due to his conviction being based on the testimony of a single witness. The Court finds no deficiency of counsel with respect to this claim. As already discussed, legally sufficient evidence supports petitioner's conviction. Counsel had no basis upon which to request acquittal due to a lack of evidence corroborating the complainant's allegations. Accordingly, the failure to request an acquittal is not deficient. As already stated, attorneys need not file meritless motions to render effective assistance of counsel. United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
Petitioner also alleges that counsel failed to request DNA testing. Petitioner provides no specifics with respect to this claim. The Court, nevertheless, notes that the State presented evidence at punishment that petitioner had fathered the child of a fourteen-year-old relative, Crystal Ross. SF-IV at 235-36. Under the facts of this case, the relevance of DNA testing appears limited to whether petitioner in fact fathered the child of Ms. Ross — a matter that could impact the punishment-phase credibility determination of the jury with respect to Ms. Ross. Petitioner, however, has presented nothing to show that DNA testing would support his theory that he is not the father. Without such a showing, petitioner has not affirmatively shown prejudice from the failure of his attorney to request such testing. At the punishment phase, both Ms. Ross and petitioner testified that they would be willing to submit to a blood test. SF-IV at 245, 256. Despite such willingness, petitioner has not presented this Court with any blood test that shows he is not the father of Ms. Ross' child.
To show prejudice in the sentencing context, petitioner must demonstrate that the failure to request DNA testing 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"). Petitioner's argument presupposes that the unrequested testing would support his testimony that he had no sexual relations with Ms. Ross and discredit the testimony of Ms. Ross to such an extent that the jury would have imposed a lighter sentence. The Court finds this assumption to be based upon pure speculation. Petitioner cannot establish prejudice with mere speculation or conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Rather he must establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 689 (1984). He has not done so here. Consequently, the Court finds no ineffective assistance of counsel in failing to request the DNA testing.
Petitioner further alleges that trial counsel failed to file a motion in limine. (Pet. at 7.) His state writ provides helpful insights into this claim. See Partial S.H. Tr. at 16-22. He therein explains that counsel rendered ineffective assistance at punishment by failing to file a motion in limine to prevent the State from impeaching him with a 1974 conviction. Id. at 16. At punishment, the State entered into evidence a "Stipulation of Evidence" signed by the trial judge, petitioner, and his attorney, in which defendant admitted that he had been previously convicted for aggravated robbery in 1974. SF-IV at 229. The State also placed into evidence petitioner's "penitentiary packet" reflecting the 1974 conviction. Id. at 229, 258. In addition, the State elicited testimony from petitioner about that aggravated robbery conviction, when it cross-examined him during the punishment phase. Id. at 258-59. After petitioner testified that Ms. Ross' son was not his son, the State used the photograph of petitioner contained within the penitentiary packet to demonstrate similarities between petitioner and photos of the child. Id. at 258-60. Petitioner's claim presumes that a motion in limine would have kept this evidence from the jury and prevented the impeachment during cross-examination. That presumption, however, is not supported by applicable state-law.
It is well settled under Texas law that a motion in limine that excludes evidence is subject to reconsideration throughout trial. Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998); Gaffney v. State, 940 S.W.2d 682, 687 (Tex.App.-Texarkana 1996, pet. ref'd). A motion in limine, furthermore, would not have prevented the State from impeaching petitioner once the defense opened the door. See Pavlacka v. State, 892 S.W.2d 897, 900-03 (Tex.Crim.App. 1994) (addressing the admissibility of impeachment evidence previously excluded by a motion in limine); Delk v. State, 855 S.W.2d 700, 703-04 (Tex.Crim.App. 1993) (addressing the admissibility of impeachment evidence once the door has been opened despite the granting of a previous motion in limine). The absence of a motion in limine thus could not have prejudiced petitioner within the meaning of Strickland.
Even had counsel succeeded on a motion in limine, the State could have used the photo in the penitentiary packet to demonstrate similarities between petitioner and Ms. Ross' son in an attempt to impeach testimony by petitioner that he was not the boy's father. Petitioner, furthermore, apparently forgets a very important fact — the State had already entered into evidence the penitentiary packet related to the 1974 conviction and a stipulation signed by petitioner that he had previously been convicted in 1974. The State would have been able to compare the photograph within that packet to the photographs of Ms. Ross' child notwithstanding a previous successful motion in limine. The State could have compared the pictures of the child to petitioner himself.
The Court also notes that the prior conviction appears properly admitted at punishment. Under Texas law and for purposes of sentencing,
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown 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.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 1994). The prior criminal record of petitioner was relevant to sentencing. Article 37.07 imposes no remoteness restriction on the admissibility of prior convictions during punishment. The 1974 conviction appears admissible under Texas law. The Court finds the assumption that the trial court would have excluded such conviction from the evidence at punishment to be based on an erroneous view of state law and speculation unsupported by such state law. Mere speculation does not carry petitioner's burden to establish prejudice. See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Petitioner has not shown prejudice from any failure to file a motion in limine. He has not shown a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 689 (1984). Once again, counsel is not required to file motions that have no merit in order to render effective assistance of counsel. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
D. Ineffective Assistance of Appellate Counsel
Petitioner also argues that he received ineffective assistance from his appellate attorney, Katherine Drew. (See Pet. at 8.) He specifically contends that Ms. Drew rendered ineffective assistance when she raised frivolous issues on appeal and thus denied him a full, fair, and meaningful appeal. (Id.) He expounds upon this claim in his state writ. See Partial S.H. Tr. at 21-24. He therein claims that Ms. Drew mis-applied the law to the facts by unsuccessfully attempting to apply case law to the facts of petitioner's case. Id. at 21. He also claims that Ms. Drew failed to argue the extraneous offense of sexual assault rather than the issue of paternity. Id. at 21-22.
The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const., art. VI. Criminal defendants, furthermore, have a constitutional right to effective assistance of counsel in their first appeal. Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Douglas v. California, 372 U.S. 353, 356-57 (1963). "A claim of ineffective assistance based on the failure to argue an issue on appeal is governed by the familiar two-part Strickland test." United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). Strickland likewise applies to other claims of ineffective assistance of appellate counsel. To successfully state a claim of ineffective assistance of appellate counsel under Strickland one must demonstrate a deficiency of appellate counsel and that deficiency prejudiced petitioner's appeal. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Petitioner argues that Ms. Drew provided ineffective assistance when she failed to present a claim on direct appeal. He contends that she should have raised a claim relating to the extraneous offense of sexual assault of Ms. Ross, rather than focusing on the paternity issue enmeshed within that extraneous offense.
To render effective assistance of counsel, appellate counsel need not raise every non-frivolous issue on appeal. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). "Instead, to be deficient, the decision not to raise an issue must fall below an objective standard of reasonableness." United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (quoting Strickland, 466 U.S. at 688). "[A] reasonable attorney has an obligation to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful. Solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court's attention." Williamson, 183 F.3d at 462-63 (footnote and citations omitted). To determine whether appellate counsel was deficient, the Court thus must consider whether the omitted challenge "would have been sufficiently meritorious such that [the attorney] should have raised it on appeal." Phillips, 210 F.3d at 348.
Had appellate counsel challenged the admission of the extraneous offense of sexual assault of Ms. Ross, such challenge would have failed under state law. At the punishment stage of a noncapital prosecution, evidence may be offered "as to any matter the court deems relevant to sentencing." TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 1994). Article 37.07 § 3(a)(1) specifically permits the admission of any "evidence of an extraneous crime or bad act that is shown 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." "[T]he trial judge has the responsibility of determining the threshold admissibility of extraneous offenses in the punishment phase." Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App. 1996). This means that, "[b]efore admitting extraneous misconduct evidence at the punishment stage, the trial court must make a preliminary determination that the evidence would support a finding beyond a reasonable doubt that the defendant committed the acts in question." Craig v. State, ___ S.W.3d ___, ___, No. 03-01-00264-CR, 2002 WL 533686, at *4 (Tex.App.-Austin Apr. 11, 2002, no pet. h.). Consistent with Article 37.07 § 3(a)(1), the trial court, furthermore, must also instruct the jury in the punishment charge that extraneous acts are not to be considered, unless the jury is satisfied beyond a reasonable doubt that the defendant committed such acts. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Under Texas law, the admissibility of evidence at the punishment stage is a function of policy rather than logical relevance. Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App. 2000).
In this instance, the trial court held a hearing prior to voir dire in which it considered the exclusion of extraneous offenses at the punishment phase. SF-II at 9-22. Trial counsel made it well known that she believed that evidence of the sexual assault of Ms. Ross would be inadmissible without the trial court finding beyond reasonable doubt that petitioner committed such assault. Id. at 12-13. The trial court indicated that the State could prove that petitioner had intercourse with Ms. Ross through the testimony of Ms. Ross. Id. at 16. It indicated that it could revisit the matter at the punishment phase, if necessary. Id. at 19.
After voir dire but also prior to trial, defense counsel further stated to the trial court that, during punishment, unadjudicated extraneous offenses must be proven beyond a reasonable doubt. SF-III at 98-99. The court stated: "Right. I believe that." Id. at 99. In addition, the trial court held a post-trial hearing on the testimony of Ms. Ross before she testified before the jury at punishment. SF-IV at 216-24. The court stated that it would "allow this testimony in front of the jury." Id. at 223. Defense counsel immediately stated: "I would like to register an objection to that again because we don't feel that this meets the threshold of reasonable doubt and especially in light of the fact that the State did not enter an order of paternity." Id. at 223-24. By permitting the testimony to be presented to the jury, the trial court at least implicitly found the testimony admissible under Article 37.07. The trial court, furthermore, specifically instructed the jury that it could consider the evidence of the extraneous offense only to the extent it has been shown that petitioner committed the offense beyond a reasonable doubt. SF-IV at 265; TR at 22-23.
Under the facts of this case, a challenge to the admission of the extraneous offense of sexual assault of Ms. Ross would not have succeeded on appeal. When the trial court has "made the necessary preliminary determination and then gave the required jury instruction" there is no merit to appeal the admission of the extraneous offense. Craig v. State, ___ S.W.3d ___, ___, No. 03-01-00264-CR, 2002 WL 533686, at *4 (Tex.App.-Austin Apr. 11, 2002, no pet. h.). In this instance, the trial court appears to have made the necessary preliminary determination and gave the required jury instruction. Consequently, appellate counsel did not render ineffective assistance by not presenting the issue to the court of appeals. Appellate counsel is not deficient in failing to present a meritless claim on direct appeal. Under the facts of this case, the claim petitioner wanted to be raised on direct appeal has insufficient merit to warrant presentation to the court of appeals. Appellate counsel was not deficient in failing to present the claim on direct appeal. Appellate counsel need not raise frivolous issues to render effective assistance on appeal.
Appellate attorneys, furthermore, do not generally render ineffective assistance by raising points of error that do not succeed on appeal. Petitioner contends that Ms. Drew rendered ineffective assistance when she mis-applied the law to the facts by unsuccessfully attempting to apply case law to the facts of petitioner's case. Counsel argued that, under language in McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981) that the specific intent to arouse or gratify the sexual desire of any person can be inferred from "the defendant's conduct, his remarks, and all surrounding circumstances", the jury could not infer such specific intent through conduct alone. (Appellant's Brief at 8). The court of appeals disagreed with such interpretation and held that "nothing in McKenzie would suggest that the jury could infer intent only if all three types of evidence were present." Ashanti v. State, No. 05-96-01920-CR, 1999 WL 39041, at *3 (Tex.App.-Dallas Feb. 1, 1999, pet. ref'd) (not designated for publication).
It is not necessarily deficient for attorneys to make unsuccessful arguments on appeal. The Court, furthermore, perceives no deficiency of appellate counsel in making the aforementioned argument based upon McKenzie. Petitioner, moreover, has shown no prejudice from counsel making such argument. He has not shown that counsel failed to make an argument that would have created a reasonable probability of success on appeal. He has not shown any solid, meritorious argument based on directly controlling precedent that was not brought to the appellate court's attention. He has thus shown no ineffective assistance of appellate counsel.
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.
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.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).