Opinion
Civil Action No. 4:04-CV-301-Y.
October 1, 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 pursuant to the provisions of 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 Daniel Dwayne Carey, TDCJ-ID #807687, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1998 Carey was charged by a three-count indictment with aggravated sexual assault of S.C., a child younger than fourteen years of age. (Clerk's R. at 3.) The offense occurred in November 1993, when S.C. was seven years old. ( Id.) Following his trial in August 1999, a jury found Carey guilty on one count of aggravated sexual assault and assessed his punishment at forty-five years' imprisonment. ( Id. at 81.) Carey appealed his conviction, and the Second District Court of Appeals affirmed the trial court's judgment in an unpublished opinion on December 28, 2000. Carey v. Texas, No. 2-99-394-CR (Tex.App.-Fort Worth Dec. 28, 2000) (not designated for publication). On May 9, 2001, the Texas Court of Criminal Appeals refused Carey's petition for discretionary review. Carey v. Texas, No. PDR No. 0361-01. Carey did not seek writ of certiorari. (Federal Pet. at 3.)On April 22, 2002, Carey filed a state application for writ of habeas corpus raising the claims presented herein, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court on April 7, 2004. Ex parte Carey, No. 57,343-02, at cover. Carey filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 15, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In one ground, Carey contends he received ineffective assistance of trial counsel because counsel appeared to be intoxicated and was sleeping or unconscious during portions of his trial. (Federal Pet. at 7.)
E. RULE 5 STATEMENT
Dretke believes that Carey has sufficiently exhausted available state remedies on the claims presented and does not move for dismissal on exhaustion grounds. (Resp't Answer at 4.)F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court 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 Supreme Court of the United States 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). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2), (e); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams, 529 U.S. at 399. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion, as here, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472.
2. Ineffective Assistance of Counsel
Carey contends he received ineffective assistance of trial counsel Clyde Marshall because counsel appeared intoxicated and slept or was unconscious throughout his trial as a result of a chemical reaction to medication. (Pet'r Memorandum in Support at 1.) Carey asserts that counsel did not know what case he was defending and called Carey by another name, that counsel made incorrect references to 1963 instead of 1993, that counsel's speech was slurred, that counsel slept during the state's questioning of S.C. in the guilt/innocence phase of trial, and that the trial court had to postpone the second day of trial because counsel was hospitalized due to the chemical reaction. ( Id. at 2.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688. To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688. A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Where, as here, a petitioner's ineffective assistance claims have been reviewed on their merits and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. Santellan v. Dretke, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002).
After holding a hearing by affidavit on Carey's claims, the state trial court entered findings of fact refuting Carey's allegations of ineffective assistance. (1st Supp. Clerk's R. at 2-3; 2nd Supp. Clerk's R. at 2-7.) The court's findings were largely based on the affidavits of Alana Minton, one of the state prosecutor's in the case, and C.C. "Kit" Cook, the presiding trial court judge, regarding Marshall's representation of Carey throughout the trial proceedings. (Clerk's R. at 40-41; 1st Supp. Clerk's R. at 2-3.) Based on its findings, and applying the Strickland standard, the trial court determined that Carey received effective assistance of counsel, and it recommended denial of habeas relief. (2nd Supp. Clerk's R. at 7.) In turn, the Texas Court of Criminal Appeals denied relief based upon the trial court's findings. Ex parte Carey, No. 57,343-02, cover. In his federal petition, Carey makes no reference to the state court findings and makes no effort to rebut the presumptive correctness of the findings. 28 U.S.C. § 2254(e)(1). Nor does an independent review of the state court records reveal clear and convincing evidence that would rebut the presumption of correctness.
As far as the undersigned can determine, nowhere in the record does it reflect that counsel's speech was slurred, that counsel was sleeping or unconscious during any portion of the proceedings, that counsel's representation was impaired by medication he was taking at the time, or that the proceedings were delayed a day due to counsel's chemical reaction to medication. To the contrary, state prosecutor Minton averred in her affidavit that: "At no time during trial was Mr. Marshall intoxicated and he never appeared to be under the influence of any narcotic or alcohol. Additionally, Mr. Marshall was never 'unconscious' nor asleep, neither during trial or on any recesses." (State Habeas R. at 40.) Further, the presiding judge averred in his affidavit that: "Mr. Marshall was not unconscious or asleep during the trial. I did not have to wake Mr. Marshall as claimed by Mr. Carey. At no time during the trial did Mr. Marshall appear to be intoxicated or under the influence of any narcotic." (1st Supp. Clerk's R. at 2.) Carey's mere assertions, unsupported and unsupportable by anything contained in the record, have no probative evidentiary value in this proceeding. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
The record does reflect that counsel engaged in voir dire and jury argument, cross-examined the state's witnesses, called witnesses on Carey's behalf during the guilt/innocence phase, made appropriate objections, and requested and received a directed verdict on one count of aggravated sexual assault alleged in the indictment. Counsel made several references before the jury to the years 1963 and/or 1964, but corrected himself in two of those instances. (4Reporter's R. at 29-30; 5Reporter's R. at 97-99; 6Reporter's R. at 61.) Also, counsel was, at some point, diagnosed with "small vessel disease," which apparently affects short and long term memory. (State Habeas R. at 33-34.) There is nothing to indicate, however, that counsel suffered from the affliction at the time of Carey's trial or that the affliction diminished counsel's performance during trial.
Therefore, assuming the trial court's factual findings to be correct, it cannot be said that the state courts' application of the Strickland attorney-performance standard was objectively unreasonable. See Bell v. Cone, 535 U.S. 685, 698-99 (2002). Carey has not demonstrated deficient performance by counsel or that he was deprived of counsel during a critical state of the proceedings. See id. at 695-96; United States v. Cronic, 466 U.S. 648, 659 (1984); Haynes v. Cain, 298 F.3d 375, 380-81 (5th Cir.), cert. denied, 537 U.S. 1072 (2002).
II. RECOMMENDATION
Carey'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 October 22, 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 op. on reh'g); 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 October 22, 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, a 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, be and hereby is returned to the docket of the United States District Judge.