Opinion
Civil Action No. 4:03-CV-803-Y.
July 27, 2004
ORDER ADOPTING, AS MODIFIED, MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner David Wayne Bryan under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on February 6, 2004;
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on February 26, 2004;
4. The respondent's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on February 27, 2004; and
5. The petitioner's response to the respondent's written objections filed on March 15, 2004.
The Court, after de novo review, finds and determines that the petitioner's objections and the bulk of the respondent's objections must be overruled and the petition for writ of habeas corpus denied, for the reasons stated in the magistrate judge's findings and conclusions; but that the respondent's objections as to Bryan's failure to raise the same factual allegations to exhaust his claims of ineffective assistance of counsel on appeal must be sustained, such that this claim will alternatively be dismissed with prejudice, as set forth herein.
Petitioner Bryan raises the following grounds for relief: (1) that the indictment against him was fundamentally defective in violation of the Fourteenth Amendment because it (A) failed to include "adulterants and dilutants" in the drug weight, (B) failed to include the phrase "other than marijuana," and (C) failed to give him notice of the applicable penalty group, and that, consequently, the trial court should have quashed the indictment; (2) the evidence was legally insufficient to support the conviction; (3) the trial court abused its discretion by (A) denying his motion to dismiss based upon speedy-trial violations, (B) denying his motion to suppress the videotape of the interrogation, and (C) questioning a State witness; (4) trial counsel was constitutionally ineffective; (5) appellate counsel was constitutionally ineffective; and (6) the mental condition of a State's witness affected his credibility. The magistrate judge determined that Petitioner failed to exhaust as to his grounds for relief (1) (B) and (3) (A) and (B), and otherwise addressed Bryan's claims on the merits and recommended denial.
Bryan also listed as claims of abuse of discretion the trial court's failure to quash the indictment, and failure to grant a new trial. The respondent and the magistrate judge considered and addressed these two sub-claims as a part of the consideration of grounds 1 and 2, and the Court adopts this resolution.
In written objections, the respondent argues that Bryan failed to properly exhaust his claims as to ground 2 — the legal sufficiency of the evidence, ground 5 — ineffective assistance of appellate counsel, and ground 6 — the mental condition of a witness for the prosecution. As to the respondent's argument regarding the disposition of the claim of legal sufficiency of the evidence (Respondent's objections at III), the Court overrules this objection for the reasons stated by magistrate judge in his findings and conclusions at page 5, footnote 1, and at page 9. With regard to Respondent's objections as to grounds 5 and 6, the Court overrules Respondent's arguments that Bryan had not fairly presented such claims (Respondent's objections at I(A) and II) for the reasons stated by the magistrate judge at page 5, footnote 2. The Court also overrules the respondent's objections concerning whether Bryan presented the same factual allegations as to the mental condition of a witness, as Bryan alleged in his May 7, 2003, First Supplement to the article 11.07 application, that the challenged witness "killed himself." ( Ex parte Bryan, No. 55916-01, First Supplement at 2.) With regard to the respondent's objection that Bryan failed to present in state court the same factual basis for the ineffectiveness-of-counsel-on-appeal claim asserted here, however, the Court sustains the objection. As noted by the respondent in the objections at section I(B), although some of Bryan's fact allegations of such claim were raised in the state proceeding, Bryan did not assert in state court, as he has here, that appellate counsel was ineffective for failing to raise a challenge to the police custodial interrogation. As a result, Bryan's claim of ineffective assistance on appeal will be dismissed with prejudice as procedurally barred, and in the alternative, denied on the merits.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED, as modified herein.
It is further ORDERED that Bryan's grounds for relief (1) (B), (3) (A), (3) (B), and (5), be, and they are hereby, DISMISSED WITH PREJUDICE.
It is further ORDERED that Bryan's remaining grounds for relief, and in the alternative as to ground 5, be and they are hereby, DENIED.