Opinion
No. 3:01-CV-0332-P
April 16, 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 Paul Bearden 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 August 28, 1997, after a consolidated trial, a jury convicted petitioner of aggravated sexual assault of a child younger than fourteen years of age and sexual assault. (Pet. for Writ of Habeas Corpus (Pet.) ¶¶ 2-6); RR at 474. The jury assessed punishment at life imprisonment on the aggravated sexual assault and at twenty years imprisonment on the other conviction. RR at 566. It also assessed a fine of $10,000 for each conviction. Id. Consequently, the court sentenced him to that period of incarceration on each conviction and ordered that the sentences run concurrently. Id. at 568.
"RR" denotes the Reporter's Record separately paginated in nine volumes.
Petitioner appealed his conviction. (Pet. ¶ 8.) On July 26, 1999, the Fifth District Court of Appeals of Texas at Dallas affirmed the conviction. Bearden v. State , No. 05-97-01550-CR, 1999 WL 528937, at *8 (Tex.App.-Dallas July 26, 1999, no pet.) (not designated for publication). Petitioner has also filed three state applications for writ of habeas corpus. On May 27, 1998, the Texas Court of Criminal Appeals denied petitioner's first state petition for writ of habeas corpus without written order on the findings of trial court without a hearing. Ex Parte Bearden, No. 37,545-01, slip op. at 1 (Tex.Crim.App. May 27, 1998). On September 13, 2000, it likewise denied petitioner's second state petition for writ of habeas corpus without written order on the findings of trial court without a heating. Ex Parte Bearden, No. 37,545-02, slip op. at 1 (Tex.Crim.App. Sep. 13, 2000). On February 7, 2001, it denied petitioner's third state writ without written order. Ex Parte Bearden, No. 37,545-03, slip op. at 1 (Tex.Crim.App. Feb. 7, 2001).
In February 2001, petitioner filed the instant petition for federal habeas relief. On July 30, 2001, respondent filed an answer to the petition and provided the state-court records. On August 6, 2001, respondent filed an advisory to the court in which it provides a sworn affidavit of petitioner's trial attorney.
Factual Background: The Court of Appeals for the Fifth District of Texas at Dallas summarized the evidence as follows:
The complainant is the daughter of appellant [(petitioner)]. One indictment charged sexual assault by penile penetration of the child's vagina and anus on or about September 1, 1994. The second indictment charged aggravated sexual assault of the same child on October 8, 1991.
. . . The complainant, F__B__, testified she was seventeen years old at trial and a senior in high school. She described the alleged sexual assaults committed against her by appellant for many years. She stated that they lived on Burrell Street in Dallas for seven years. During this time, appellant began the alleged sexual abuses, first by digitally penetrating her vagina. F__B__ first reported these acts, "sticking his finger inside my vagina," to a teacher when she was in the third grade. The teacher reported this to Child Protective Services, and caseworkers questioned the child. She and her mother then moved to a shelter, and the police arrested appellant.
The complainant testified that appellant telephoned them often white incarcerated and threatened to bite off her ear unless she told the authorities that she had lied. She further stated that her mother wanted her to recant by telling all the authorities that she was upset because her father whipped her. Heeding her mother's instruction and because she believed appellant's threats, F__B__ told the police and social workers that she had lied about the sexual abuse. A medical examination of the child showed negative results. The criminal charges were dropped and appellant returned to live at home.
F__B__ testified that on her twelfth birthday the sexual abuses began again. Appellant had told her that it was a tradition for fathers and daughters to engage in sex with each other and she could help him get better by these acts. She said that appellant was disabled and did not work. On her birthday, appellant took her to his bedroom. He locked the front door, undressed the child, and had sexual intercourse with her. She testified that he got on top of her and the penetration hurt her badly, and she screamed and cried. She said that appellant continued these acts every week, two weeks, or each month while her mother was absent.
In addition to telling F__B__ that having sex with her was helping him, appellant bought her presents. He bought her a go-cart, television, and air conditioner, and let her have a hardwood floor for her bedroom while she was in the fourth, fifth, and sixth grades. The sexual abuse continued.
F__B__ testified that she was afraid of appellant. He would become upset if she refused to have sex with him. Once he shot at her dog with a pellet gun. One Christmas he made her take down the Christmas tree and threatened the end of Christmas in that house. He told her she could not see her half-brother or go visit friends. She stated she tried to talk to appellant, saying the sex acts made her feel nasty. She reiterated that she was afraid he would hurt her. Appellant had warned her not to tell anyone, to deny having sexual intercourse with him, and told her that she would get into a lot of trouble if this were discovered.
The complainant testified that appellant's sexual acts against her included penetration of her anus, which, she said, hurt her very badly. Appellant struck her when she tried to get away from him, telling her it would not hurt for long.
The complainant further said that even after appellant moved from the house, he continued his sexual abuses of her. She did not remember the last instance, although he moved when she was in the eighth grade. Her parents were divorced.
From the third grade until this time, F__B__ had not made any outcry. Finally, she told a cousin who was in the seventh grade. The cousin, S__S__ testified that F__B__ told her to keep this secret because she was afraid of appellant. But the aunt, appellant's sister, learned of this and urged that the complainant tell her everything. The aunt told her to report all of this to the police, and she did. She made a second report at Child Protective Services. That agency arranged for her to receive psychological counseling.
On cross-examination, F__B__ admitted she had recanted the first report when she was a third grader and told the authorities she had tied. She also agreed that at times she deserved to be disciplined by her parents, and appellant spanked her with a belt until she was fourteen years old. She denied that she wanted to get appellant out of the house so she could be free to come and go as she pleased. She denied being coached on her testimony at trial.
On redirect examination, the complainant said her mother told her to lie about the accusation against her father. Her mother believed they needed appellant's disability income for financial security. So she told the authorities that she was mad because her father spanked her and she wanted him to come home. F__B__ emphasized that she told the truth in making that first outcry to her teacher. In addition, she said her testimony about the continuing abuses after that time was true.
The complainant's mother testified that during the marriage to appellant, she worked and was often away from home, leaving the child in his care. In 1995, the mother learned about F__B__'s outcry of the continuing sexual abuse. She said she remembered the first outcry when F__B__ was in the third grade, and she took the child to the shelter. When they went home, appellant called them from jail. She stated that he threatened her that "people would be hurt" if he did not come home. He suggested that the child recant her story and say that she lied because he spanked her. When she permitted appellant to talk with the child on the phone, she saw that F__B__ was scared. The mother admitted she told the child to lie and took her to the authorities to do that. Additionally, she said she did believe that the child's original outcry was true when she first heard it, but she was afraid for both of them. According to the mother's testimony, after appellant returned home, she would try to check on the child with him. But she said she never talked with the child again about the sexual abuse. She did say she was sorry that she had the first sexual abuse charges against appellant dropped.
Pam Baldwin, F__B__'s third grade teacher, testified about the outcry made to her. The child told her about being taken into the bedroom by appellant and the sexual touching at that time. She contacted the Child Protective Services, and a social worker met them after school. The mother also was at that meeting, but she appeared angry and was concerned about keeping appellant's financial help. She said the child became nervous and upset about her mother's reaction. The teacher later learned that appellant was back in the house.
Appellant's sister testified that for several years she had suspected that he was sexually abusing F__B__. After the child's cousin repeated what F__B__ told her, the aunt asked the child whether "her daddy had been messing with her," and she answered, "yes." The aunt insisted on the report to the police.
Richard McCreary, a psychologist working with sexually abused children, testified that Child Protective Services referred the complainant to him, and he counseled her in sixteen sessions from September 1995 until January 1996. The doctor outlined her statements to him about the sexual abuses occurring for many years. She told him about appellant's domineering and tyrannical behavior. The doctor said the child still exhibited anxiety and fear of appellant even knowing that he was in jail. F__B__ detailed the sexual fondling and digital penetration occurring when she was in the third grade. Although the abuse stopped for a while after appellant had been in jail, it started again when she was twelve years old, this time in the form of sexual intercourse, and that continued for several years.
Dr. McCreary testified that it is not untypical for a child to make an allegation of abuse and then to recant. The doctor further stated that it is not untypical for a child to have a bond with the perpetrator of the abuse and to remain silent about the abuse. He said that F__B__ was an unwilling patient and had difficulty in revealing information about the sexual abuse. Based on his experience and counseling sessions with her, Dr. McCreary's diagnosis was that F__B__ suffered from post-traumatic stress disorder. He stated his professional opinion that F__B__'s symptoms and conduct were consistent with a child who has been sexually abused.
Donny Harris testified before the jury after the trial court conducted a preliminary hearing outside the presence of the jury regarding this testimony. According to Harris, he met appellant in jail. Appellant told him he wanted to have his wife killed before she could testify against him and asked Harris to contact someone. Harris contacted Larry Graves with an offer of $800 to silence the wife. Harris reported this to the police, who set up and taped a three-way conversation among appellant, Graves, and Harris from the jail regarding the solicitation of murder. Harris testified appellant had some inmates beat him because he had reported the solicitation. Harris contacted a Dallas Police Department officer, Detective David Clack, who also testified in this trial, and the tape was played to the jury.Bearden v. State, No. 05-97-01550-CR, 1999 WL 528937, at *2-4 (Tex.App.-Dallas July 26, 1999, no pet.) (not designated for publication).
Substantive Issues: Petitioner claims he is being held unlawfully because (1) his trial attorney rendered ineffective assistance and (2) he was denied a fair trial due to the impermissible joinder of the two charges against him into a single trial. (Pet. at 7.) Exhaustion: Respondent concedes that petitioner has sufficiently exhausted all state remedies for the claims raised in the instant petition.
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.
II. Standard of Review
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act 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).
Petitioner raised each of his instant claims in his third state writ. S.H. Tr. at 5, 8-18. The Texas Court of Criminal Appeals denied that state writ without written order. Ex Parte Bearden, No. 37, 545-03, slip op. at 1 (Tex.Crim.App. Feb. 7, 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.
"S.H. Tr." refers to the state habeas record attached to Ex Pane Bearden, No. 37, 545-03, slip op. (Tex.Crim.App. Feb. 7, 2001).
III. Examination of the Issues
Petitioner claims that he is being held unlawfully because (1) he received ineffective assistance from his trial attorney in that his attorney and (2) he was denied a fair trial due to the joinder of his cases into a single trial.
A. Ineffective Assistance of Trial Counsel
In the instant petition, petitioner raises two specific grounds for finding that his trial attorney rendered ineffective assistance. He argues that counsel (1) failed to consult with him about his right to separate jury trials and (2) failed to object at punishment to four illegitimate extraneous offenses that contributed to his life sentence. (See Pet. at 7.)
The Texas Court of Criminal Appeals denied these claims on the merits without written order. Ex Parte Bearden, No. 37, 545-03, slip op. at 1 (Tex.Crim.App. Feb. 7, 2001). The state disposition of the ineffective assistance claims raised by petitioner 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 performancc 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).
1. Failure to Consult about Separate Trials
Petitioner contends his trial attorney failed to consult with him about his right to separate jury trials. (Pet. at 7.) Respondent submits an affidavit of counsel wherein counsel avers that he consulted with petitioner about that right. (See Aff. attached as Ex. A to Resp.'s Advisory to the Court.) Respondent thus argues that counsel was not deficient.
In the absence of an evidentiary hearing, this Court cannot make independent credibility determinations. To decide the deficiency issue on the affidavit of counsel would require such a hearing. Rather than conduct an evidentiary hearing, the Court will instead disregard the affidavit in its entirety and assume for the purpose of this action that counsel indeed failed to consult with petitioner about his right to separate jury trials. Deficiency alone, however, does not make counsel ineffective in violation of the Sixth Amendment to the United States Constitution. To establish a claim of ineffective assistance of counsel, petitioner must show he was prejudiced by the deficient assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984).
In this instance, petitioner has demonstrated no prejudice from the consolidated trials. Under Texas law, the evidence presented against him would have been admissible in both trials. See TEX. CODE CRIM. PROC. ANN. art. 38.37 (Vernon 1995) (providing that other crimes, wrongs, or acts committed by the defendant against a child who is the victim of sexual assault is admissible to prove the state of mind of the child and the defendant and the previous and subsequent relationship between the defendant and the child); Hinds v. State, 970 S.W.2d 33, 34, 35 (Tex.App. — Dallas 1998, no pet.). Although courts in Texas may exclude evidence covered by Article 38.37 upon a proper objection under Tex. R. Evid. 403, see Hitt v. State, 53 S.W.3d 697, 706 (Tex.App.-Austin 2001, pet. ref'd), petitioner has not shown that the evidence would have been excluded under Rule 403. The probative value of the evidence, furthermore, does not appear substantially outweighed by any of the factors set out in Rule 403. Petitioner has thus "failed to meet the prejudice prong of the Strickland test," because "the evidence from one trial would be admissible in the other." Burnett v. Collins, 982 F.2d 922, 929-30 (5th Cir. 1993). He presents nothing to undermine confidence in either of his convictions. He has demonstrated no reasonable probability that the results of his consolidated trial would have differed had his attorney consulted with him about his right to separate trials. He presents nothing that indicates the result of his consolidated trial is unreliable or that the proceeding was fundamentally unfair.
Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."
2. Failure to Object to Extraneous Offenses At Punishment
Petitioner also alleges his attorney rendered ineffective assistance at punishment when he failed to object to the admission of four extraneous offenses. (Pet. at 7.) The record, however, shows that counsel did object to the testimony of two of the witnesses. See RR at 483, 506. There is thus no deficiency of counsel with respect to those two offenses.
There is likewise no deficiency of counsel in his failure to object to the testimony of the other witnesses. 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. 1997). The evidence from the other two witnesses is evidence of extraneous crimes or bad acts perpetrated by defendant. See RR at 493-98, 516-21. As such, the State could offer them at sentencing. The trial court's ruling on the objection to the first witness showed that the trial court deemed the proffered evidence relevant to sentencing. In light of that initial ruling, counsel does not render deficient performance when he fails to object to similar extraneous matters. Failing to assert a meritless or futile objection "cannot be grounds for a finding of deficient performance." Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). The trial court had already determined similar offenses to be relevant. Objecting to the testimony of the other witnesses would have been futile.
Petitioner, furthermore, has not carried his burden under Strickland's second prong to show that he was prejudiced by his counsel's actions. To show prejudice in the sentencing context, he must demonstrate that the failure to object to the extraneous evidence 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 trial court would have sustained a contemporaneous objection and kept the evidence out. In view of Article 38.07 and the rulings of the trial court on the objections made to the testimony of the other two witnesses, the Court finds petitioner's assumption that the trial court would have sustained the objection and precluded the evidence to be based on 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, 466 U.S. at 689 . He has not done so here.
B. Denial of Fair Trial
Petitioner also contends that he was denied a fair trial due to the joinder of his cases into one trial. Respondent asserts that the laws of Texas in effect when petitioner committed the offenses permitted the State to have one trial for both offenses, because the offenses came out of the same criminal episode. Respondent further asserts that petitioner has not shown prejudice from the consolidated trials and is thus entitled to no habeas relief.
"The propriety of a consolidation rests within the sound discretion of the state trial judge. The simultaneous trial of more than one offense must actually render petitioner's state trial fundamentally unfair and hence, violative of due process before relief pursuant to 28 U.S.C. § 2254 would be appropriate." Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976). "When there has been a violation of state procedure," the Court must determine whether such violation constitutes a constitutional infraction of defendant's due process rights" that renders petitioner's trial fundamentally unfair. Manning v. Warden La. State Penitentiary, 786 F.2d 710, 711-12 (5th Cir. 1986) (quoting Nelson v. Estelle , 642 F.2d 903, 906 (5th Cir. 1981), which in turn cites Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)) .
"The argument against joinder [of offenses] is that the defendant may be prejudiced for one or more of the following reasons: . . . the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime . . . charged; or . . . the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one."Closs v. Leapley, 18 F.3d 574, 578 (8th Cir. 1994) (quoting Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964)).
To determine whether a trial is rendered fundamentally unfair by the consolidation of offenses, the courts look to various factors. See, e.g., Burnett v. Collins , 982 F.2d 922, 929 (5th Cir. 1993) (considering whether the evidence of each separate charge would have been admissible in a trial of one of the charges); Breeland v. Blackburn , 786 F.2d 1239, 1240 (5th Cir. 1986) (considering the strength of the evidence against the defendant on each charge); Tribbitt, 540 F.2d at 841 (considering whether the charges "arose out of the same criminal episode"). Courts analyzing the prejudicial effect of a consolidated trial under Strickland use the same factors when they determine whether a consolidated trial violated the due process rights of the defendant. See Burnett, 14 982 F.2d at 929 (analyzing the prejudice prong of Strickland and citing with approval Manning, 786 F.2d at 711-12, a case that dealt with a due process violation). As the prejudice aspects of petitioner's claims are the same for this claim and the claim that counsel failed to consult with petitioner about his right to separate trials, the Court finds no prejudice from the consolidated trials for the same reasons it found no prejudice under the ineffective-assistance claim. In the absence of prejudice, a simultaneous trial of more than one offense does not render petitioner's state trial fundamentally unfair and thus no violation of due process has occurred.
The Texas Court of Criminal Appeals denied this claim on the merits without written order. Ex Parte Bearden , No. 37, 545-03, slip op. at 1 (Tex.Crim.App. Feb. 7, 2001). This state disposition is consistent with existing precedent of the United States Supreme Court. It does not involve any 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. Consequently, petitioner is entitled to no habeas relief on this claim.
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.