Opinion
CIVIL ACTION NO. 4:03-CV-1177-A
January 14, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Ronnie Bruce Cagle, TDCJ-CID #868674, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Allred Unit in Iowa Park, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
After their mother died in early 1997, ten-year-old E.S. and eight-year-old A.S. moved in with Cagle and his wife Cathy, who was their mother's sister. (4 Rep. R. at 79-84.) In June 1997, E.S. told Cathy that Cagle had been touching her inappropriately. ( Id. at 84-86.) Cathy confronted Cagle, who said that all he did was fondle E.S. several times. (Id. at 90, 101.)Cagle was charged with aggravated sexual assault of a child under 14 and indecency with a child by contact. (State Habeas R. at 21.) Cagle pleaded not guilty to aggravated sexual assault of a child and guilty to indecency with a child. (4 Rep. R. at 7-8.) The jury found him guilty and assessed his punishment at 50 years' confinement for aggravated sexual assault of a child and 12 years' confinement for indecency with a child, to be served concurrently. (Clerk R. at 43-44.)
Cagle appealed. The Second District Court of Appeals affirmed the judgment, and the Texas Court of Criminal Appeals refused Cagle's petition for discretionary review. Cagle v. State, 23 S.W.3d 590 (Tex.App.-Fort Worth 2000, pet. ref'd). Cagle filed one state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Cagle, No. 56,173-01 (Tex. Grim. App. July 30, 2003) (not designated for publication). Cagle filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on September 25, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Cagle raises six issues:
1. Sentencing him for both indecency with a child and aggravated sexual assault of a child violated the Double Jeopardy Clause.
2. The state courts did not properly adjudicate his habeas claims on the merits.
3. The Texas outcry-testimony statute is unconstitutional.
4. The evidence is legally insufficient to convict him.
5. Trial counsel was constitutionally ineffective.
6. Appellate counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell argues that Cagle's insufficiency claim has not been properly exhausted and asserts that it has been procedurally defaulted; however, Cockrell believes that Cagle's remaining allegations have been properly exhausted.F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA's compelled deference to decisions of state courts is now familiar. Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Double Jeopardy
Cagle argues that because the indecency count and aggravated sexual assault count attempted to punish him for the same occurrence, sentencing him for both offenses constitutes a violation of the Double Jeopardy Clause. (Federal Pet. at 7; Pet'r Mem. at 10, 12-14.) In other words, he asserts he was sentenced twice for the same criminal conduct. The Double Jeopardy Clause protects against multiple prosecutions and punishments for the same offense. Monge v. California, 524 U.S. 721, 727 (1998). However, Cagle told Cathy that he fondled E.S. several times, and E.S. testified that Cagle inserted his finger into her vagina several times. (4 Rep. R. at 108, 133-36.) Thus, the charges brought against Cagle are separate and distinct offenses for double-jeopardy purposes. Hutchins v. State, 992 S.W.2d 629, 633 (Tex.App.-Austin 1999, pet. ref'd, untimely filed); cf. Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App. 1998) (holding State not entitled to seek convictions for two offenses when child did not testify that defendant had touched her more than once). Thus, it was permissible to try the counts in one trial and separately sentence him on each count. See TEX. PENAL CODE ANN. §§ 3.02(a) 3.03(a) (Vernon 2003). The state courts reasonably applied the law to the facts in holding that the separate, concurrent sentences after one trial were permissible. Federal habeas relief is not appropriate on this claim.
3. State Habeas Corpus Proceedings
Cagle contends that the state habeas courts erred by not properly adjudicating his claims on the merits. (Federal Pet. at 7-8.) Errors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996). An attack on a state habeas proceeding does not entitle the petitioner to habeas relief with respect to his conviction because it "is an attack on a proceeding collateral to the detention and not the detention itself." Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir), cert. denied, 484 U.S. 838 (1987). Thus, this claim is not cognizable on federal habeas review. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527 U.S. 1056 (1999).
Cagle admits he has failed to exhaust this claim. (Federal Pet. at 8.) However, because Dretke addresses this claim without relying on the exhaustion doctrine, the undersigned will do likewise. 28 U.S.C. § 2254(b)(2). (Resp't Answer at 5 n. 3.) Further, even though Cagle failed to exhaust this claim, it would be procedurally defaulted from this court's review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998).
4. Unconstitutional Statute
Cagle argues that the Texas outcry-testimony statute is unconstitutional and violates the Ex Post Facto Clause because it alters the rules of evidence and lessens the amount of proof the State has to offer to supports a conviction. (Federal Pet. at 7; Pet'r Mem. at 20-21.) Under Texas law in existence at the time of Cagle's offense — March 1, 1997 — an allegation of indecency with a child or aggravated sexual assault of a child could result in a supportable conviction merely by the uncorroborated outcry testimony of a victim who was younger than 18, within one year of the offense. In 1993, the Texas Legislature amended the statute to increase the age of the victim from 14 to 18. Although retroactively applying the 1983 version of article 38.07 would violate the constitutional prohibition against ex post facto laws, Carmell v. Texas, 529 U.S. 513, 530-31 (2000), the State did not retroactively apply article 38.07 against Cagle. The State merely applied the statute in effect when Cagle committed the offenses. Further, because E.S. was 10 at the time of the offenses, the change in the statute was not implicated. There is no ex post facto violation.
Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 12.01.1993 Tex. Gen. Laws 3765, 3765-66, amended fey Act of May 23, 2001, 77th Leg., R.S., ch. 1018, § 1, 2001 Tex. Gen. Laws 2112, 2112 (current version at TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 2004)).
Act of May 26, 1983, 68th Leg., R.S., ch. 382, § 1, 1983 Tex. Gen. Laws 2090, 2090-91 Act of May 29, 1983, 68th Leg., R.S., ch. 977, § 7, 1983 Tex. Gen. Laws 5317, 5319, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765, 3765-66 (amended 2001).
5. Sufficiency of the Evidence
Cagle argues that the evidence was legally insufficient to support his conviction. (Pet'r Mem. at 19.) Dretke argues that because Cagle did not raise this allegation in either his petition for discretionary review or in his state habeas application, it is not exhausted and is, thus, procedurally barred. (Resp't Answer at 12-13.) Cagle raised this contention in his state habeas application, which renders it sufficiently exhausted. (State Habeas R. at 11.) E.g., O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999); Richardson v. Procunier, 762 F.2d 429, 430 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983).
To review the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence "in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All credibility choices and conflicting inferences are to be resolved in favor of the fact-finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822 (2000). The evidence was legally sufficient to find that Cagle committed the offenses of indecency with a child and aggravated sexual assault of a child. Cagle was convicted of inserting his finger into E.S.'s vagina and of indecency with E.S. by touching her genitals. (Clerk R. at 3.) Cathy testified that Cagle told her that he had fondled E.S. several times (4 Rep. R. at 108), and E.S. testified that he inserted his finger into her vagina several times. ( Id. at 133.) E.g., Gonzales v. State, 4 S.W.3d 406, 413 (Tex.App. — Waco 1999, no pet.); Thornton v. State, 957 S.W.2d 153, 156-57 (Tex.App.-Fort Worth 1997), aff'd on other grounds, 986 S.W.2d 615 (Tex. Grim. App. 1999) (per curiam).
6. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST, amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Cagle's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
a. Trial counsel
Cagle asserts that trial counsel was constitutionally ineffective because he:
1. did not seek to sever the counts in the indictment or quash the indecency count;
2. induced him to plead guilty to indecency on insufficient information, prejudicing him in front of the jury; and
3. failed to request proper guilty-plea admonishments.
For the following reasons, Cagle has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Cagle first asserts that trial counsel was constitutionally ineffective because he did not seek to sever the two counts into separate trial or to quash the indecency count. (Federal Pet. at 7; Pet'r Mem. at 15.) Under Texas law, Cagle had no absolute right to a severance. TEX. PENAL CODE ANN. § 3.04(c) (Vernon 2003). In fact, had counsel moved for a severance and made the requisite showing of unfair prejudice, Cagle's sentences could have been imposed to run consecutively. Id. § 3.04(b). Thus, Cagle has failed to show that counsel's failure to move for a severance was not the result of a reasoned trial strategy. Rogers v. State, 85 S.W.3d 359, 360-61 (Tex.App.-Texarkana 2002, no pet.). Further, Cagle has not shown that the indictment was so vague or indefinite as to deny him effective notice of the acts he allegedly committed; thus, a motion to quash would have been futile, and counsel cannot be held deficient for failing to do a futile act. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument).
DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App. 1988).
Second, Cagle argues that counsel was ineffective for inducing him to plead guilty to indecency, which prejudiced him in front of the jury. (Federal Pet. at 7; Pet'r Mem. at 8, 15-18.) Once again, this could have been a reasoned trial strategy on counsel's part to have Cagle plead guilty to indecency because counsel may have viewed the evidence as unequivocal on indecency, but questionable on aggravated sexual assault. (4 Rep. R. at 165-68.) Such a strategy will not be second-guessed. Haynes v. Cain, 298 F.3d 375, 381-82 (5th Cir.) (en banc), cert. denied, 537 U.S. 1072 (2002).
Included in this claim is Cagle's assertion that counsel failed to properly advise him of the consequences of his guilty plea to the indecency count. In other words, it appears Cagle is attempting to assert that his guilty plea was rendered involuntary by counsel's actions or inactions. (Pet'r Mem. at 15-18.) Because Cagle pleaded guilty, he may only challenge the voluntary character of his guilty plea. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). If a challenged guilty plea is knowing, voluntary, and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371,373-74 (5th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or misrepresentation by others that his plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Black/edge v. Allison, 431 U.S. 63, 75 (1977)). Before a trial court may accept a guilty plea, the court must ensure that the defendant "has a full understanding of what the plea connotes and of its consequence," but not that he understood the "technical legal effect" of the charges. Boykin v. Alabama, 395 U.S. 238, 244 (1969); James, 56 F.3d at 666. A plea is involuntary, and thus insufficient to support a conviction, if the defendant "has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976). If the defendant understands the maximum prison term and fine for the offense, the subsequent guilty plea is knowingly entered. Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir.) (per curiam), cert. denied, 517 U.S. 1198 (1996). Absent supporting evidence in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue in his pro se petition to be of probative evidentiary value. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
The record reflects that Cagle stated in open court that he was pleading guilty freely and voluntarily and was aware of the punishment range for the offense. (4 Rep. R. at 111-13.) Cagle has offered nothing more than his self-serving allegation that his plea was involuntary, which is insufficient to rebut the presumption of regularity of the state court records. Babb v. Johnson, 61 F. Supp.2d 604, 606 (S.D. Tex. 1999); see also Armstead, 37 F.3d at 210.
Third, Cagle argues that trial counsel was ineffective because he did not request that the trial court give him the proper guilty-plea admonishments under Texas law. See TEX. CODE CRIM.PROC. ANN. art. 26.13 (Vernon Supp. 2004). (Pet'r Mem. at 9, 17.) The record reflects that the trial court substantially complied with the required statutory admonishments, and Cagle has failed to show how the admonishments as given misled or harmed him. Id. (4 Rep. R. at 110-13.) Counsel was not defective for failing to request admonishments that were, in fact, sufficiently given by the trial court. E.g., Lauti, 102 F.3d at 170; Marshall, 835 F.2d at 1103. Further, Cagle's voluntary guilty plea waived his ineffective-assistance-of-counsel claim directed at his indecency charge. Beasley v. McCotter, 798 F.2d 116, 118 n. 1 (5th Cir. 1986) (per curiam op. on reh'g), cert. denied, 479 U.S. 1039 (1987); see also Toilet v. Henderson, 411 U.S. 258, 267 (1973) (stating guilty plea waives all nonjurisdictional defects occurring before entry of plea).
b. Appellate counsel
Cagle also argues that appellate counsel was constitutionally ineffective because she failed to raise on appeal issues relating to double jeopardy, improper guilty-plea admonishments, involuntary guilty plea, and trial counsel's ineffectiveness. (Federal Pet. at 8; Pet'r Mem. at 22-23.) Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish deficient performance, Cagle must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Cagle must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id. As explained above, Cagle's claims that he argues appellate counsel should have raised on appeal have no merit. Thus, counsel was not deficient for failing to raise an issue on appeal that would have ultimately resulted in no relief. Duhamel v. Collins, 955 F.2d 962, 967(5th Cir. 1992).
7. Summary
In sum, Cagle is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Cagle was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Cagle's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until February 4, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 4, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.