Opinion
3-02-CV-420-D
November 6, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation 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 brought pursuant to 28 U.S.C. § 2254.
Parties. Petitioner is an inmate confined at the Daihart Unit of the Texas Department of Criminal Justice, Institutional Division at Texas, serving a conviction for the offense of possession of a controlled substance.
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case: Upon his plea of not guilty to the offense of possession of cocaine with intent to deliver as charged in the indictment returned in Cause No. 19, 683 in the 196th District Court of Hunt County, Texas, Petitioner was tried by a jury which returned a verdict of guilty on the lesser included offense of possession of 400 grams or more of cocaine. Petitioner entered pleas of "true" to the enhancement paragraphs alleged in the indictment, and thereafter the jury assessed his punishment at 35 years confinement in the Texas Department of Criminal Justice.
Brooks effected a direct appeal from his conviction and on March 28, 2001, the Fifth Court of Appeals affirmed his conviction in an unpublished opinion. Petitioner then filed a petition for discretionary review which was refused by the Texas Court of Criminal Appeals on August 1, 2001.
Brooks thereafter filed an application for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure, which was denied by the Texas Court of Criminal Appeals on January 30, 2002. Subsequently he filed the instant petition pursuant to 28 U.S.C. § 2254.
Findings and Conclusions: In his first ground for relief Brooks claims that the manner in which the cocaine was discovered and seized violated his rights under the Fourth Amendment. It is well settled that a federal court in considering a state prisoner's habeas corpus petition is barred from considering the merits of a Fourth Amendment search and seizure claim. See Stone v. Powell, 428 U.S. 465, 495-6, 96 S.Ct. 3037, 3052-53 (1976).
Petitioner's claim that he was denied an opportunity for a full and fair litigation of his claim is without merit. The record reflects that he filed a motion to suppress in the trial court and was granted a hearing, at the conclusion of which his motion was denied. See App. No. 05-00-0194-CR [No. 19, 683], Record Vol, I at 23 and 29-30; Partial Reporter's Record Vol. I. He again raised this claim in his art. 11.07 application. Moreover, the merits bar imposed under Stone v. Powell applies even if the state courts' disposition of the Fourth Amendment claim was arguably incorrect. E.g. see Janecka v. Cockrell, 301 F.3d 316, 320-321 (5th Cir. 2002).
In his second ground for relief Petitioner claims that the State's evidence did not connect the contraband to him. It appears that this ground is predicated primarily on the fact that Officer Mark Spears did not positively identify the bag, presented at trial as State's Exhibit 5, as the bag which Brooks possessed on the date of his arrest. However, Spears testified unequivocally that the contents of Brooks's bag were removed and placed in a sealed envelope for delivery to the laboratory for analysis. This ground is without merit.
The magistrate judge has carefully reviewed the relevant testimony concerning the handling of the seized contents of Petitioner's bag. See Testimony of Mark Spears at Vol. 3, pages 56-57; Testimony of Pete Delgado, 114. at 152, et seq; and Testimony of Kaye Davis Id at 153, et seq. This testimony demonstrates that the integrity of the seized substance and the chain of custody were fully established by the evidence.
In his third ground for relief Brooks complains of the admission of a bag which was not positively identified as the bag which he had in his possession at the time of his arrest. In the course of Mark Spears's testimony before the jury, he was shown a travel bag which he identified as looking like the one taken from Petitioner. His attorney objected, but the court ruled it was admissible. Reporter's Record Vol. 3 at pages 31-34. The issue was raised on direct appeal and the appellate court held that the tentative identification of the bag went to the weight to be given, rather than to its admissibility. See No. 05-00-00194-CR, opinion at pages 4-5. An evidentiary ruling of a state court is not cognizable in a federal petition for habeas corpus relief unless it relates to evidence that is crucial, critical and highly significant. E.g. see Pemberton v. Collins, 991 F.2d 1218, 1227 (5th Cir. 1993).
Although Officer Spears's testimony to the effect that the State's exhibit appeared similar to the bag taken from Petitioner was subject to the jury's consideration as to its weight and credibility when compared to the conflicting and contradictory testimony of Brooks, himself, it cannot be said that the admission of the bag under the circumstances reflected in the record rendered his criminal trial fundamentally unfair.
To the extent that Petitioner's second and third grounds raise a sufficiency of the evidence issue the same is without merit. In the context of a state prisoner's petition for habeas relief in federal court, the sufficiency of the evidence is governed by the Supreme Court decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) which requires that a claim be analyzed by determining 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." Id at 319 99 S.Ct. at 2789. Although the testimony of Mr. Brooks, testifying in his own behalf, conflicted in many material respects with that of Officer Spears as to the facts surrounding the events on the date of his arrest, the weight and credibility to be given to such evidence was a matter within the province of the jury. Applying the Jackson standard to the evidence presented at trial, it is clear that Petitioner cannot show that the prosecution's case was insufficient to sustain his conviction for possession of cocaine.
In his final ground for relief Brooks claims that his trial attorney was ineffective in failing to object to admission of the controlled substance knowing that it was not the same evidence which was offered at his first trial. This ground is predicated upon an alleged conversation which occurred between defense counsel and the prosecutor during a recess. See Petitioner's memorandum attached to his amended petition at page 16. Brooks has presented nothing to corroborate the alleged fact that such conversation occurred in either his state application or in the instant petition. Moreover, a review of his art. 11.07 application reflects that Brooks did not present this allegation to the Texas state courts. His self-serving statement without any independent corroboration from a competent witness to the alleged conversation fails to present a cognizable claim for habeas corpus relief
Petitioner' s first trial which began on October 21, 1999, ended in a mistrial, apparently because the prosecution failed to disclose all of its documentary evidence to defense counsel prior to trial. See "Jury Trial" transcript for proceedings on October 21, 1999.
RECOMMENDATION.
For the foregoing reasons it is recommended that the petition be denied and dismissed.