Opinion
CIVIL ACTION NO. 3:01cv247-x.
September 19, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Frederick Terence Baker (Baker) is an inmate confined at the Neal Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) at Amarillo. Respondent is the Director of TDCJ-ID.
Statement of the Case: Upon his plea of not guilty to the offense of murder as charged in the indictment filed in No. F-7910781-RIV, Petitioner was tried by a jury which found him guilty and thereafter assessed his punishment at a term of twenty-five years imprisonment.
Baker is serving two additional sentences concurrently with this conviction. See Respondent's answer, p. 2 n. 1 and Exh. B.
Baker appealed his conviction which was affirmed by the Fifth Court of Appeals on June 24, 1999 in an unpublished opinion. No. 05-97-00986-CR. Petitioner subsequently filed a petition for discretionary review which was refused by the Texas Court of Criminal Appeals on October 6, 1999. Baker v. State, PDR No. 1338-99. On March 6, 2000, Baker filed a state application for writ of habeas corpus challenging his conviction pursuant to Texas Code of Criminal Procedure art. 11.07. Ex Parte Baker, Appl. No. 47, 437-01. On September 28, 2000, the trial court, after obtaining an affidavit from Thomas Warren, an Administrative Assistant to the State Classification Committee for the Texas Department of Criminal Justice- Institutional Division, regarding Baker's claim, reviewed Petitioner's application, Warren's affidavit, and all the trial court records, and thereafter made findings of fact and conclusions of law. The Texas Court of Criminal Appeals subsequently denied Baker's application without a written order on the findings of the trial court without a hearing.
In response to the instant petition and this court's show cause order, on June 14, 2001, Respondent filed an answer together with copies of Baker's prior state proceedings. It is not claimed that Baker has failed to exhaust state remedies and therefore his petition is before the court for review on the merits.
Findings and Conclusions: In his first ground for relief Baker asserts that the Texas Dept. of Criminal Justice is applying the sentencing and release provisions enacted by the Seventy-third Texas legislative session, rather than those enacted by the Sixty-fifth legislative session- the provisions which were in effect at the time he committed the murder at issue in this petition. Petitioner claims that this application violates the Ex Post Facto clause of Art. I of the United States Constitution. He further contends that the calculation of good time credits to which he is entitled is in error.
Baker's ex post facto claim is totally conclusory. In neither his state art. 11.07 application nor in the present petition has he presented anything to support his assertion that the laws of the Seventy-third legislative session have been applied to determine his mandatory release date. To the contrary, as reflected in Exh. B to Respondent's answer, each of his sentences is governed by the laws enacted by the Sixty-fifth legislative session.
The essence of the second part of Baker's first ground is that he was entitled to receive forty-five days good conduct time for each thirty day calendar time served.
Baker cites Texas Code of Criminal Procedure Annotated Article 42.12 § 15(c) for the proposition that he is entitled to forty-five days of good conduct time per thirty days actually served. However, Petitioner's reliance thereon is misplaced. Although art. 42.12 § 15(c) does mention good conduct time credits, it does so only in the context of calculating any such accumulated credits along with calendar time served to equal the maximum term imposed. Rather, Texas Civil Statute Article 6181-1 § 3(a), promulgated in 1977 by the Sixty-fifth Texas legislature- in force in 1979-contained the provisions for inmate classification and the corresponding accrual of good conduct time. According to § 3(a) the accrual thereof was as follows:
"(1) 20 days for each 30 days actually served while the inmate is classified as a Class I inmate;
(2) 10 days for each 30 days actually served while the inmate is classified as a Class II inmate;
(3) 10 additional days for each 30 days actually served if the inmate is a trusty."
TEX. CIV. STAT. ART 6181-1 § 3(a) (Vernon 1977).
As can be seen from the express language of the statute, the maximum good time credit which an inmate can earn is thirty days for each thirty day period served, beginning with twenty days for a Class I inmate or ten days for a Class II inmate. An inmate under either classification apparently can earn an additional ten days per calender month served if he has also been designated as a "trusty." Baker has not presented the court with any evidence concerning his classifications during the period of his incarceration, nor any evidence as to when he was given "trusty" status. Moreover, the state court system found that the calculations applied to his sentence were correct to which a presumption of correctness applies. 28 U.S.C. § 2254(e)(1). Accordingly, Baker is not entitled to relief on his first ground.
Baker next alleges that he was denied the due process and equal protection of law by the trial court in its admission into evidence of his confession. Specifically, he complains that the trial court incorrectly found that his confession was knowingly and voluntarily given, in light of various instances of police coercion, including false promises, as well as Petitioner's borderline mental capacity.
Although Respondent argues that review of this ground is procedurally barred, it is clear that the Court of Criminal Appeals' disposition of this claim does not comport with the requirements of Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991).
The record reflects that the trial court conducted a hearing on Baker's motion to suppress his confession, at the conclusion of which the court denied the motion and made specific findings which were filed in the record. The admissibility of his confession was raised as an issue in his direct appeal and was rejected by the appellate court. See No. 05-97-00986-CR, opinion filed on June 24, 1999 at pp. 5-9. Baker correctly notes that he presented evidence at the suppression hearing, which -if found credible-would have warranted excluding presentation of his confession to the jury. However, the weight and credibility to be given to the evidence presented in the course of the suppression hearing was reserved to the trial judge who observed the witnesses live. As reflected in the court's findings, the testimony of Petitioner was discredited and, ultimately, rejected. There is clear support in the record to support the findings of fact which the trial court made, thus foreclosing relief on this ground. See 28 U.S.C. § 2254(d)(2).
In his third ground for relief, Baker claims that he was denied effective assistance of counsel when his trial attorney failed to present evidence of his low I.Q. in the course of the suppression hearing.
When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984). When considering the reasonableness of counsel's conduct, a court must indulge a strong presumption that it falls within the wide range of reasonable professional competence, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct at 2065; Westley v. Johnson, 83 F.3d 714, 719 (5th Cir. 1996), cert denied, 519 U.S. 1094, 117 S.Ct. 773 (1997). In determining whether prejudice has resulted from counsel's alleged deficient performance, the court must determine whether counsel's performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1993).
Counsel did present evidence of Baker's academic history and the results of an I.Q. test in the defense portion of the guilt-innocence phase through Judy Eppright and his D.I.S.D. school records. See Vol VIII SOF, 369 et. seq. and Defendant's Exh. 3.
The timing of the presentation of such evidence is a matter of trial strategy and, therefore, does not constitute a factor overcoming the strong presumption of professional competence.
Further since Baker has not produced any evidence relating to whether his low I.Q. would have had any impact on the resolution of this issue, that is, had Ms. Eppright's testimony been presented at the suppression hearing there is a reasonable probability that his motion to suppress his confession would have been granted, he cannot show prejudice. Baker was able to cogently present his version of the facts despite his limited mental acuity. His testimony did not pertain to a lack of understanding or competence, but rather related to specific alleged statements made to him by the interrogating officer, which, as noted above, the trial court did not find credible. Therefore counsel's decision not to present evidence of his low I.Q. at the suppression hearing did not constitute ineffective assistance of counsel.
In light of Baker's admissions to Curtis Payne, See No. 05-97-00986-CR, opinion, supra at pp. 2-3, it is doubtful in the extreme that the jury would have acquitted him even had his statement not been admitted.
In his fourth ground for relief, Baker claims that the trial court erred in failing to instruct the jury on the lesser included offenses of voluntary manslaughter and criminally negligent homicide.
To serve as a basis for federal habeas corpus relief, a state court's jury instruction must have "'by itself so infected the entire trial that the resulting conviction violates due process.'" Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Mayabb v. Johnson, 168 F.3d 863, 866 (5th Cir.), cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999). Although a defendant is entitled to have the jury instructed on requested defensive theories that have a foundation in the evidence, "[t]he trial court is not required to instruct the jury on a defense theory if the evidence is insufficient as a matter of law for the defendant to prevail on that theory." Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1901, 95 L.Ed.2d 507 (1987). On collateral review, a federal court "must consider whether, under the totality of the circumstances, the errors complained of were so gross or the trial was so fundamentally unfair that the petitioner's constitutional rights were violated." Boyd v. Scott, 45 F.3d 876, 880 (5th Cir. 1994). Thus, improper jury instructions in state criminal trials generally do not give rise to federal habeas corpus relief. See Tarpley v. Estelle, 703 F.2d 157, 159 (5th Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983).
Moreover, the Fifth Circuit has previously held that there is no federal constitutional right to an instruction on a lesser included offense in a noncapital state trial. See Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1999), cert. denied, 526 U.S. 1148, 119 S.Ct. 2027, 143 L.Ed.2d 1038. ( citing Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988)). Accordingly, absent a violation of the Constitution, federal courts defer to the state courts' interpretation of state law as to whether a lesser-included-offense instruction is warranted. See Creel, 162 F.3d at 391. These issues were thoroughly considered by the Fifth Court of Appeals and found to be without merit. See No. 05-97-00986-CR, opinion, supra at pp. 15-19.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus should be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to 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 (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. 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 (10) day period may bar a de novo determination by the district judge of any finding of fact and 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.