Opinion
SA-05-CA-0206-RF.
June 21, 2006
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Before the Court is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on February 14, 2006. The Magistrate Judge recommended that Petitioner's § 2254 habeas application be dismissed for failing to prove the state's decision was "contrary to, or involved an unreasonable application of, clearly established federal law." 28 U.S.C. § 2254(d). Plaintiff filed his objections to the Memorandum and Recommendation (Docket No. 18) on March 13, 2006. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation (Docket No. 18) should be ADOPTED IN ITS ENTIRETY.
INTRODUCTION
This is a habeas corpus case brought pursuant to 28 U.S.C. § 2254 by Earl Bailey ("Petitioner"), an inmate in the custody of the Texas Department of Criminal Justice — Correctional Institutions Division. Petitioner challenges his 2002 state court jury trial conviction for aggravated assault with a deadly weapon, alleging that (1) the key witness's testimony was impeached and controverted and legally insufficient to convict Petitioner, (2) the state did not enter an aggravated assault charge until after the jury had deliberated the aggravated robbery charge for one and a half days, (3) the state never proved the allegedly stolen items came from the store where the alleged aggravated robbery occurred, and (4) because petitioner was acquitted of the more serious aggravated and theft elements he should also be acquitted of the lesser charges.The procedural history of this litigation is as follows: Petitioner pled not guilty to aggravated robbery but was found guilty of a lesser included offense of aggravated assault and was sentenced to twenty-five years in prison on March 11, 2002. His conviction was affirmed by the Texas Fourth Court of Appeals on May 14, 2003. He filed a petition for discretionary review with the Texas Court of Criminal Appeals but was refused the petition on October 8, 2003. The Texas Court of Criminal Appeals denied Petitioner a state writ of habeas corpus January 12, 2005. The case was referred to Magistrate Judge Mathy, who recommended it be dismissed because Petitioner failed to prove the state's decision was "contrary to, or involved an unreasonable application of, clearly established federal law" as stated in the Antiterrorism and Effective Death Penalty Act of 1996. ("AEDPA").
Bailey v. State of Texas, No. 04-0200204-CR (not designated for publication).
Transcript at PDR.
Docket no. 18 at 5-6.
The Court now reviews the Magistrate's recommendation.
Discussion
I. Standard of Review
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from de novo determination by the District Court. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. In the instant case, Petitioner filed objections to the order. Thus, the Court reviews the Memorandum and Recommendation de novo.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Douglas v. United Serv. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
II. HABEAS JURISDICTION UNDER AEDPA
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner may not obtain relief with respect to a claim adjudicated on the merits in state court unless the adjudication (1) resulted in a decision that was contrary to or involved an unreasonable application of clearly-established federal law, as announced by the Supreme Court, 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 proceedings. 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 on a question of law or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. It is not enough that the state court applied clearly-established federal law incorrectly. A habeas petition can be granted only if the correct legal principle was unreasonably applied by the state courts to the facts of the petitioner's case.
Williams v. Taylor, 529 U.S. 362, 405-406 (2000).
Id. at 411.
Id. at 413.
III. Objections
Petitioner's first objection to the Magistrate's recommendation is that the key witness's testimony was "impeached and controverted and legally insufficient to convict Petitioner." The Magistrate correctly notes, "in determining a state prisoner's federal habeas petition, `a determination of a factual issue made by a state court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption by clear and convincing evidence.'" Additionally, federal courts can only review "allegations of deprivations of federal rights."
Docket no. 20 at 2.
Docket no. 18 at 6. citing 28 U.S.C. § 2254(e)(1).
28 U.S.C. § 2254(a) (a district court shall entertain an application for a writ of habeas corpus . . . pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States).
Petitioner fails to provide clear and convincing evidence that the witness was impeached and controverted. The court reports indicate the witness was not impeached or controverted. Furthermore, Petitioner cites two cases to support his claim which have both been overruled. Petitioner's claim is a factual argument which will not be decided in this Court. Petitioner offered insufficient support for his claim that the key witness was impeached and controverted. Therefore, this objection is overruled.
Reporter's Record ("R.R.") vol. 5 at 9 lines 12-17.
Young v. State, 957 S.W.2d 923 (Tex. App-Texarkana 1997); Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000, overruled).
Petitioner's second objection is that the State did not enter an aggravated assault charge until after the jury had deliberated the aggravated robbery charge for one and a half days. He writes, "the trial court clearly cannot be allowed to wholly rewrite the indictment to charge a different offense because the jury could not find the Petitioner guilty of aggravated robbery." Petitioner refers to his conviction of aggravated assault which is a "lesser included offense" of aggravated robbery. He cites Stirone v. U.S. which holds that a court "cannot permit a defendant to be tried on charges that are not made in the indictment against him."
Docket no. 20 at 3.
Stirone v. U.S., 80 S.Ct. 270, 273 (1960).
However, the Magistrate explains that Petitioner's case falls within Texas's two prong test to see if a lesser included offense is permitted. "First, the lesser-included offense must be included within the proof necessary to establish the offense charged." Second, "there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser included offense." In this case, the lesser included offense is aggravated assault which is defined as a person intentionally or knowingly threatening another with imminent bodily injury, and the person uses or exhibits a deadly weapon during the commission of the assault. Aggravated robbery is defined as a person committing a robbery as defined in 29.02 and he: (1) causes serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) threatens or places another person in fear of imminent bodily injury or death.
Docket no. 18 at 10-11.
Johnson v. State, 623 S.W.2d 654, 657 (Tex.Crim.App. 1981).
Id.
Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon 2002).
Tex. Pen. Code Ann. § 22.02 (Vernon 2002).
Tex. Pen. Code Ann. § 29.03 (Vernon 2002).
The trial evidence showed that Petitioner intentionally exhibited a deadly weapon when he pulled out the knife. He swung the knife with the intent to cause bodily injury to another, and placed the person in fear of imminent bodily injury or death. These acts are sufficient to satisfy the elements of aggravated robbery and aggravated assault, however, the jury only convicted the Petitioner of the latter assault charge.
Additionally, the Magistrate cites Aguilar v. State, which allows lesser included offenses when the greater offense is properly alleged, regardless of whether the "lesser included offenses are expressly alleged in the charging of the greater offense." The concept of adding a "lesser included offense" to a more serious charge is tolerated in the state of Texas. Petitioner does not meet the burden of proving that the court's holding was contrary to law, or was an unreasonable application of established federal law. Petitioner's second objection must be overruled.
Aguilar v. State, 682 S.W.2d 556, 561 (Tex.Crim.App. 1985).
In his third objection, Petitioner argues that the items in his car were purchased from other stores and that it was never established that he stole the items. He supports the argument by reiterating his belief that the key witness was impeached and controverted. However, Petitioner was not convicted of aggravated robbery but instead was convicted of the lesser included charge of aggravated assault. As discussed above, the witness was not impeached or controverted. Additionally, whether or not the items were stolen has no bearing on the aggravated assault issue, and therefore, is irrelevant and overruled.
Docket no. 20 at 4.
Petitioner's fourth objection is that because he was not convicted of the more serious aggravated robbery charges, he should be acquitted of the lesser aggravated assault charges. He cites Mitchell v. State for the proposition that the plaintiff "entered a plea of guilty to the offense of aggravated assault." While that is a true statement, this point is irrelevant as to Petitioner's argument that because he was not convicted of aggravated robbery he should automatically be acquitted of any aggravated assault charge. The two charges are not the same.
Mitchell v. State, 543 S.W.2d 637 (Tex.Crim.App. 1976).
Docket no. 20 at 5.
Id.
The Court agrees with the Magistrate's explanation that Petitioner's aggravated assault charge is a lesser included offense to aggravated robbery. The Petitioner has raised the same argument in all of his objections, but he has failed to demonstrate the court's ruling to be contrary to established federal law or based on an unreasonable interpretation of the facts in light of the evidence presented in the state court proceedings. Because Petitioner has failed to meet the burden of proof, the fourth objection must be overruled.
Docket no. 18 at 11-12.
CONCLUSION
In light of the foregoing, the Court finds that the Magistrate's Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY. It is therefore ORDERED that Petitioner's case is DISMISSED WITH PREJUDICE.