Opinion
NO. 3-03-CV-0844-K
October 28, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Edmond Clark, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of aggravated robbery and sentenced to 25 years confinement. His conviction and sentence were affirmed on direct appeal. Clark v. State, No. 05-00-00987-CR (Tex.App.-Dallas, Nov. 30, 2001, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Clark, No. 53,630-01 (Tex.Crim.App. Oct. 16, 2003). Petitioner then filed this action in federal court.
The state appellate court reformed the judgment to reflect that petitioner was convicted after a trial before the court, not on an open plea. Otherwise, the judgment was affirmed. See Clark, No. 05-00-00987-CR, op. at 6.
II.
In four grounds for relief, petitioner contends that: (1) extraneous offense evidence was improperly admitted at trial; (2) the prosecutor suppressed exculpatory evidence; (3) he received ineffective assistance of counsel; and (4) the evidence was insufficient to support his conviction.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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 state court 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, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. See also Neal v. Puckett, 286 F.3d 230, 246 n. 14 (5th Cir. 2002) (declining to further elaborate on the "objectively unreasonable" standard articulated in Williams). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).B.
Petitioner first contends that extraneous offense evidence was improperly admitted at trial in violation of his "right against self-incrimination." (Hab. Pet. at 7, ¶ 2OA). At issue is the testimony of Kathy Long, petitioner's former girlfriend and the robbery victim. Long testified that she sought refuge at various halfway houses and battered women's shelters to escape an abusive relationship with petitioner. (St. Trial Tr. at 6-7). She also obtained a protective order against petitioner from the District Attorney. (Id. at 8). According to Long, petitioner violated the protective order at least three times by following her to work and was placed on probation for assaulting her just days before the instant offense was committed. (Id. at 9-10). The trial court admitted this testimony over the objection of defense counsel. (Id. at 9).
Petitioner was placed on probation for violating the protective order by assaulting Long on January 25, 2000. The instant offense was committed on February 6, 2000. (See St. Trial Tr. at 10, 12).
The court initially observes that, under Texas law, evidence of other crimes, wrongs, or acts may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See TEX. R. EVID. 404(b). Here, petitioner was accused of striking Long with a baseball bat while attempting to steal money from her. (See St. Trial Tr. at 15-16). Petitioner denied the charge and testified that he was in Huntsville, Texas at a family reunion at the time of the alleged offense. (Id. at 35-36). Because petitioner raised an alibi defense placing his identity in issue, evidence of his past dealings with Long involving similar assaultive conduct was properly admissible. See Booker v. State, 103 S.W.3d 521, 530 (Tex.App.-Fort Worth 2003, no pet.). Moreover, even if this extraneous offense evidence was wrongly admitted, federal habeas relief is proper "only if the error is of such magnitude that it resulted in `fundamental unfairness.'" Hafdahl v. Johnson, 251 F.3d 528, 536 (5th Cir.), cert. denied, 122 S.Ct. 629 (2001), citing Blankenship v. Estelle, 545 F.2d 510, 516-17 (5th Cir. 1977). Judged against this standard, the court is unable to conclude that the admission of this evidence in petitioner's bench trial was contrary to clearly established federal law or was otherwise unreasonable. This ground for relief should be overruled.
C.
Petitioner further contends that the prosecutor failed to disclose that the baseball bat used in the robbery was not dusted for fingerprints. According to petitioner, "[i]f the prosecutor would have dusted for fingerprints on the baseball bat it would have proven the Petitioner innocent of the crime because the fingerprints on the baseball bat wasn't the Petitioner's fingerprints at all." (Hab. Pet. at 7, ¶ 2OB). However, petitioner makes no showing that fingerprint tests would have exonerated him. Without such evidence, it is impossible to determine whether the test results would have been favorable to the defense. Hughes v. Johnson, 191 F.3d 607, 630 (5th Cir. 1999), cert. denied, 120 S.Ct. 1003 (2000); see also United States v. Taylor, 253 F.3d 1115, 1117 (8th Cir. 2001) (habeas petitioner did not show prejudice from government's failure to produce "non-existent" evidence). This ground for relief is without merit and should be overruled.
D.
In a related claim, petitioner criticizes his lawyer for not objecting to the admission of extraneous offense evidence, obtaining fingerprints from the baseball bat, and presenting "other evidence in support of his defense." (Hab. Pet. at 7, ¶ 2OC).
Contrary to petitioner's argument, defense counsel did object when Long testified that petitioner had been arrested three times for violating a protective order. (St. Trial Tr. at 9). The objection was overruled. (Id.). Nor has petitioner demonstrated that counsel was ineffective for failing to obtain fingerprints from the baseball bat. As previously discussed, without an affirmative showing that the bat did not contain petitioner's fingerprints, there is no evidence of prejudice. Similarly, petitioner's bald assertion that his attorney should have presented other unspecified evidence in support of his defense does not justify habeas relief. See Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). This ground for relief should be overruled.
E.
Finally, petitioner challenges the sufficiency of the evidence to support his conviction. Respondent counters that this claim is barred from federal habeas review because it was never presented to the Texas Court of Criminal Appeals in a procedurally correct manner.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). The state court opinion must contain a "plain statement" that its decision rests on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct 1038, 1043, 103 L.Ed.2d 308 (1989); Smith v. Collins, 977 F.2d 951, 955 (5th Cir. 1992), cert. denied, 114 S.Ct. 97 (1993). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of a federal constitutional claim. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982); Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992), cert. denied, 115 S.Ct. 151 (1994). It is well-settled under Texas law that the sufficiency of the evidence cannot be attacked for the first time on collateral review in a motion for state post-conviction relief. Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994); Ex Parte Adams, 768 S.W.2d 281, 293 (Tex.Crim.App. 1989).
Petitioner did not challenge the sufficiency of the evidence on direct appeal. Instead, he raised this argument for the first time in his state writ. The state habeas court found that" [petitioner] cannot, by way of Application for Writ of Habeas Corpus, challenge the sufficiency of the evidence upon which the conviction . . . is based." (St. Hab. Tr. at 47). This finding clearly indicates that the court's decision was based on adequate and independent state grounds. Consequently, federal habeas relief is not proper. Renz, 28 F.3d at 432.
On appeal, petitioner argued that he received ineffective assistance of counsel and asked that the judgment be reformed to correct a clerical error.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.