Opinion
NO. 3:03-CV-1856-K
March 23, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has been previously referred to the undersigned 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 Billy Ray Braxton ("Braxton" or "Petitioner") is an inmate confined at the Mark W. Sfiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Beaumont, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Following his plea of not guilty, Petitioner was convicted of the offense of robbery in Criminal District Court No. 5, Dallas County, Texas, in Cause No. F99-48606-TL. After finding that he had committed the offenses alleged for enhancement of punishment, the jury assessed a at forty-five year term of imprisonment. Petitioner appealed. On August 30, 2001, the Eleventh Court of Appeals affirmed his conviction and sentence in an unpublished opinion. See Braxton v. State, No. 11-00-00235-CR (Tex.App. — Eastland, Aug. 30, 2001, no pet.).
Petitioner subsequently filed two state applications for writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure, on November 21, 2001, and September 24, 2002, respectively. Ex Parte Braxton, No. 22, 448-03 at 4-34, and No. 22, 448-04 at 2-32. On May 8, 2002, the Texas Court of Criminal Appeals denied the first application without written order based on the findings of the trial court without a hearing. Ex Parte Braxton, No. 22, 448-03, at cover. Thereafter, Petitioner submitted a motion for rehearing. By letter dated August 21, 2002, the Court "decided, on its own initiative, not to reconsider" the denial of habeas corpus relief. ( See Exh. B attached to Petitioner's Reply, filed on December 29, 2003, and copy of the letter in the state court record). With respect to the second state application, the Court of Criminal Appeals dismissed the same on January 29, 2003 for abuse of the writ, citing art. 11.07 § 4. Ex Parte Braxton, No. 22, 448-04, at cover.
In his federal petition, filed on August 18, 2003, Petitioner challenges his conviction on the following grounds: (1) insufficiency of the evidence; (2 and 3) invalidity of the indictment; (4) ineffective assistance of counsel; and (5) denial of Petitioner's motion to proceed pro se on appeal.
For purposes of this recommendation, the petition is deemed filed on August 11, 2003, the date Petitioner signed it and presumably placed it in the prison mail. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that a federal petition is deemed filed for determining application of the AEDPA when the prisoner tenders it to prison officials for mailing).
In response to the petition and this court's show cause order, Respondent submitted the state court records and filed an answer. He seeks dismissal of the petition as barred by the one-year statute of limitations. Alternatively, he argues the petition should be denied on the merits and/or on procedural grounds. Petitioner filed a reply.
Findings and Conclusions:
Limitations: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d).
Section 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Respondent correctly asserts that Petitioner's conviction became final on September 29, 2001, when the time for filing a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals expired. See TEX. R. APP. P. 68.2(a) (effective September 1, 1997) (providing that PDR "must be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals"), formerly TEX. R. APP. P. 202(b). The one-year period began to run on September 30, 2001.
Forty-two days of the limitation period elapsed between September 30, 2001, and November 11, 2001, when Petitioner filed his first art. 11.07 application. Pursuant to 28 U.S.C. § 2244(d)(2), the one-year period was tolled from November 11, 2001, until the denial of the first state application on May 8, 2002. By virtue of Petitioner's motion for rehearing or reconsideration, submitted on or about June 8, 2002, and the court's decision "not, on its own initiative, to reconsider" the denial of habeas relief, tolling continued until August 21, 2002. ( See Exh. B attached to Petitioner's Reply filed on December 29, 2003). In Emerson v. Johnson, 243 F.3d 931, 934-35 (5th Cir. 2001), the Fifth Circuit made clear that despite an apparent prohibition on motions for reconsideration or rehearing of habeas petitions, see Tex. R. App. 79.2, "[the] AEDPA's one-year statute is tolled during the period in which a Texas habeas petitioner has filed such a motion." Id. at 934-35 (emphasis added); see also Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2002), cert. denied, 537 U.S. 1116 (2003). Tolling, however, "lasts only as long as the Texas courts take to resolve the motion for reconsideration." Emerson, 243 F.3d at 934-35.
Following the denial of reconsideration on August 21, 2002, an additional thirty-three days elapsed until the filing of the second art. 11.07 application on September 24, 2002. Pursuant to 28 U.S.C. § 2244(d)(2), the one-year period was tolled again during the pendency of the second state application.
Petitioner submitted a second motion for rehearing following the denial of his second state application. However, unlike his motion filed in connection with the first state application, the second motion for rehearing was not accepted for filing by the Texas Court of Criminal Appeals. ( See Exh. C attached to Petitioner's Reply, filed on Dec. 29, 2003, and copy of the same enclosed in the state court record). Therefore, this submission did not toll the limitation period.
Following the dismissal of his second art. 11.07 application on January 29, 2003, Petitioner had a period of 290 days beginning on January 30, 2003, and ending on November 16, 2003, within which to file his federal petition. Petitioner filed his federal petition on August 11, 2003, 97 days before the expiration of the one-year period. Accordingly, Respondent's request to dismiss the petition as untimely should be denied. Merits: Petitioner's first and fifth claims are unexhausted and he has therefore procedurally defaulted on them. Braxton failed to raise these claims in his first state habeas petition (Appl. No. 22, 448-03) and the Court of Criminal Appeal's application of art. 11.07 § 4 bars any successive petition, therefore, consideration of these grounds on the merits are procedurally barred. Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997).
Insufficiency of the evidence and denial of Petitioner's motion to proceed pro se on appeal, respectively. Moreover, there is no federal constitutional right to self-representation on appeal. Martinez v. California, 528 U.S. 152, 120 S.Ct. 684 (2000).
Petitioner also failed to present to the Court of Criminal Appeals his claim that trial counsel failed to inform him of a plea offer by the state before trial. He asserts that this claim should not be procedurally barred because he discovered this six days before the Texas Court of Criminal Appeals denied his first habeas application. Petitioner has presented no evidence to support the allegations with respect to the time of discovery, much less evidence sufficient to overcome the burden required by § 2254(e).
Although not specifically raised in his first art. 11.07 application, Braxton's trial attorney stated in his affidavit that he had conveyed the State's plea bargain to him and that Braxton refused to accept it. See No. 22, 448-03 at 0060. The trial court found counsel's affidavit to be true, thus belying Petitioner's lack of knowledge. Moreover, the presumption of correctness which attaches to the state court's findings forecloses relief.
In his second ground, Braxton complains that his indictment was not supported by a sworn complaint and therefore the trial court lacked jurisdiction. The state courts found that the indictment complied with "Chapter 21, V.A.C.C.P." Appl. No. 22, 448-03 at 00057. Federal habeas relief may only be granted on a state indictment where that indictment was so defective as to deprive the trial court of jurisdiction. Where the Texas courts have held, even by implication, that the indictment was not deficient, the federal court need not address that issue in its habeas review. McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994). Therefore Petitioner should be denied relief on this ground.
Currently TEX. CODE CRIM. P. art. 21.01-21.31.
In his third ground, Braxton contends that the Texas Court of Criminal Appeals improperly dismissed Ex Parte Braxton, Appl. No. 22, 448-04. Since there is no Constitutional right to a state habeas proceeding, this alleged error is not cognizable on federal habeas review. Rudd v. Johnson 256 F.3d 317, 319-20 (5th Cir. 2001); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), see also footnotes 4 and 5, supra.
In his fourth ground, Petitioner contends that he was denied effective assistance of counsel because counsel failed to request an examining trial which would have resulted in the indictment's dismissal, counsel failed to discover that there was no arrest warrant or affidavit of prosecution, and counsel failed to impeach the state's witnesses as to the assault elements of the crime and to introduce the police report into evidence. The representation afforded by an attorney is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id. at 698, 104 S.Ct. at 2069.
In his affidavit filed in the state trial court, Braxton's trial counsel averred that he requested an examining trial, but Petitioner was not granted one "because the slots available were full." Ex Parts Braxton, Appl. No. 22, 448-03 at 00060. The state habeas courts found the affidavit to be "correct and dispositive." Id. at 00058. Petitioner has presented no evidence to overcome the presumption created by § 2254(d) that counsel's actions constituted reasonable professional assistance. See Strickland 466 U.S. at 698, 104 S.Ct. at 2069.
As to Braxton's assertions vis-a-vis the arrest warrant and affidavit of prosecution, the trial court, on which the Court of Criminal Appeals based its denial of the application, found that Petitioner received effective assistance of counsel. Appl. No. 22, 448-03 at 00058. The record is otherwise silent with respect to Braxton's trial attorney's investigation of the arrest warrant and affidavit of prosecution. However, since Petitioner has not established both cause and prejudice as a result of his attorney's conduct, the strong presumption that an attorney's representation falls within the wide range of competent counsel required under the Sixth Amendment precludes relief, see Strickland, 466 U.S. at 690, 104 S.Ct. at 2065, nor that the provisions of § 2254(d)(1) or (2) are met.
As to counsel's alleged failure to impeach and failure to introduce the police report, these allegations are unsupported by the record and are wholly conclusory ( See Reporter's Record v. 2 at 19-23, 25-30, 53-71, 87-100). Equally important is the fact that Braxton has failed to demonstrate any prejudice caused by counsel's alleged failures. His conclusory claims of ineffectiveness fail to raise a cognizable ground for relief. E.g. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir 1990); Ross v. Estelle, 694 F.2d 1008, 1011-12, 1012 n. 2 (5th Cir. 1983). RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.