Opinion
No. 3:02-CV-1702-P.
August 10, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner, Ferdinand Cook, Jr. is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
On August 17, 1999, Arvie Kennedy returned to her apartment to find that her home had been burglarized and a number of valuables had been taken. (3 Rep. R. at 12-21.) Her kitchen window screen had been removed; her front door was open; and the wood on the door frame around the dead bolt had been destroyed. ( Id. at 15-19.) Cook's fingerprints were found on the kitchen window screen and on a check box in Kennedy's bedroom. ( Id. at 47-50, 61.) Kennedy lived alone and had not given Cook, whom she had never met, permission to enter her home or to take her property. ( Id. at 23, 31.) Cook was charged with burglary of a habitation, with enhancement paragraphs citing two prior felony convictions for burglary of a habitation and unauthorized use of a motor vehicle. (4 State Habeas R. at 42-43.) TEX. PENAL CODE ANN. § 12.42(b) (Vernon Supp. 2004), § 30.02 (Vernon 2003). An arrest warrant was issued for Cook, and he was arrested on November 1, 1999, while he was in custody for another offense. (4 State Habeas R. at 10, 45, 87.)
Items worth approximately $9,000 had been taken: two televisions, two VCRs, a stereo, jewelry, a leather jacket, a coat, silverware, a computer, and a printer. (3 Rep. R. at 21, 25.)
Kennedy had kept the check box in her bedroom in a locked drawer for approximately one year before the burglary, but Kennedy unlocked the drawer two or three days before the burglary. (3 Rep. R. at 25-26.) The day of the burglary, the window screen had been removed and was found on the ground beneath the window. ( Id. at 15, 49.)
Cook pled not guilty to the charge and not true to the enhancement paragraphs. The jury found Cook guilty of the offense. The trial court found the enhancement paragraphs to be true and sentenced Cook to 40 years' confinement. ( Id. at 120.) The Fifth District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Cook's pro se petition for discretionary review. Cook v. State, No. 5-00-1199-CR (Tex.App.-Dallas Dec. 14, 2000, pet. ref'd) (not designated for publication). Cook filed a state application for habeas corpus relief, challenging his conviction; the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. Ex parte Cook, No. 48,424-04 (Tex.Crim.App. Apr. 10, 2002) (not designated for publication). Cook filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on August 8, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition is deemed filed when the papers are delivered to the prison authorities for mailing).
Cook's first state habeas application attacked the 1993 revocation of his parole. Ex parte Cook, No. 48,424-01 (Tex.Crim.App. Feb. 28, 2001) (not designated for publication). His second and third applications were requests for leave to file applications for writs of mandamus, challenging the trial courts' failure to act on his second state habeas application. In re Cook, Nos. 48,424-02 -03 (Tex.Crim.App. Mar. 6, 2002 Apr. 10, 2002) (not designated for publication). The requests were denied. Id.
Issues
Cook raises five issues:
1. The evidence was legally insufficient to support his conviction;
2. He was arrested without receiving any Miranda warnings;
3. The State did not bring him before a magistrate judge within 48 hours of his arrest;
4. Trial counsel was constitutionally ineffective; and
5. The fingerprint evidence was not adequately tested by an expert, rendering the evidence legally insufficient;
Exhaustion of State Court Remedies
Dretke argues that some of Cook's specific allegations attacking counsel's performance and the inadequate testing on the fingerprint evidence have not been exhausted and asserts that they have been procedurally defaulted. He also asserts that Cook's claim regarding the late initial appearance before a magistrate judge has likewise not been exhausted and is procedurally defaulted. However, Dretke believes that Cook's remaining allegations have been properly exhausted.Standard of Review
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 is 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).
Exhaustion and Procedural Default
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Cook did not raise the following claims in either his petition for discretionary review or his state habeas corpus application: (1) the State did not bring him before a magistrate judge within 48 hours of his arrest and (2) trial counsel was ineffective for failing to either challenge before trial Officer Terko's absence and failure to testify or request that Terko be a witness at trial. He further failed to urge the following arguments in support of his claim that the fingerprint evidence was not adequately tested and was, thus, insufficient: (1) Cook could not challenge Officer Terko's statement or the credentials, experience, or the conflicting testimony of Detective Richard Moore and Officer Terko before the jurors at trial due to Officer Terko's absence; (2) Officer Terko's conclusions were erroneous and fraudulent but added weight to the State's case; and (3) Detective Moore's erroneous and fraudulent hearsay statement at trial had the effect of a confession. Thus, Cook seeks federal habeas relief on factual allegations that were never made in the Texas courts; this failure renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
In his state habeas application, Cook argued that counsel was ineffective for failing to object at trial when Officer Terko was not called as a witness. (4 State Habeas R. at 20, 33-34.) He did not argue that counsel should have raised this issue before trial.
However, Cook cannot return to the Texas court to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas 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). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Cook has not given any explanation to excuse his default. Indeed, these issues were known or should have been known to Cook before he filed his state habeas corpus application. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
Insufficient Evidence
Cook argues that the evidence is legally insufficient to support his conviction because the only evidence connecting him to the burglary is fingerprint evidence and nothing shows that his fingerprints were placed on the window screen and the check box at the time of the offense. (Federal Pet. at 7; Pet'r Sep. Mem. at 4-6; Pet'r Mot. for Summ. J. at 10-13, 17-22.) In a related issue, he asserts that because the only evidence connecting him to the burglary — the fingerprint evidence — was inadequately tested and incomplete, the evidence is legally insufficient. (Federal Pet. at 8; Pet'r Sep. Mem. at 12-13.)
On September 2, 2003, Cook filed a motion requesting permission to file a reply to Dretke's arguments in his answer that Cook failed to meet his burden of proof on his insufficient-evidence allegation. (Docket Entry No. 14 at 2.) Cook then filed a motion for summary judgment, in which he expanded on his arguments supporting his evidentiary claim, which this Court filed on December 29, 2003. Accordingly, Cook's September 2, 2003 motion is DENIED as moot. The Clerk shall note this ruling on the docket of the case.
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). This court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 324 n. 16). This court need not find that the evidence excluded every reasonable hypothesis of innocence or was wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could have found that the evidence, whether direct or circumstantial, and all reasonable inferences drawn from it established guilt beyond a reasonable doubt. United States v. Salazar, 958 F.2d 1285, 1294 (5th Cir.), cert. denied, 506 U.S. 863 (1992). In so determining, great weight must be given to any state court's review and determination of the sufficiency of the evidence. Gibson v. Collins, 947 F.2d 780, 782, 786 (5th Cir. 1991), cert. denied, 506 U.S. 833 (1992).
The Fifth District Court of Appeals held that the fingerprint evidence was legally sufficient to support Cook's conviction:
Here, appellant was not caught while the burglary was in progress, was not seen at the apartment, and was not found to be in possession of the stolen items. However, evidence was presented that appellant's fingerprint was found on a window screen outside the apartment and on a box of checks inside the apartment. Kennedy testified she stored the box of checks inside a desk drawer located in a second bedroom. Kenne[dy] further testified she neither knew appellant, invited him to her apartment, nor gave him permission to enter he apartment and take her property. There was no evidence presented that appellant could have deposited the fingerprints at a time prior to the burglary.
Considering the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of entry and intent beyond a reasonable doubt. Thus, we conclude the evidence is legally sufficient to support appellant's conviction.Cook, No. 5-00-1199-CR, slip op. at 4. This determination is given great weight. Gibson, 947 F.2d at 786. Further, a reasonable juror may find guilt beyond a reasonable doubt only if the evidence indicates that the imprinted object was generally inaccessible to the defendant except during the commission of the crime. Id. at 785. Kennedy did not know Cook, and he had never been in her home. Kennedy had kept the check box in her bedroom in a locked drawer, and the window screen had been removed from the window. From the fingerprint evidence found outside and inside Kennedy's home, the jury could have concluded either: (1) the window screen and check box were accessible to Cook at some time before the burglary, Cook handled the objects on that occasion, and Kennedy did not clean them so as to remove Cook's prints or (2) the objects were generally inaccessible to Cook at any time before the burglary and, thus, Cook handled them while burglarizing Kennedy's apartment. Id. The jury's choice of the second option is reasonable and rational. Id. at 786.
However, Cook also argues that the fingerprint evidence should not have been admitted and that without it, the State's case fails. He contends that the test reports were incomplete without Officer Terko's testimony and that the reports did not include certain technical information about fingerprint comparison, e.g., error rate, match standards, and necessary comparison matching points. He further asserts that this absence denied him all witnesses who were material fact witnesses to the offense. At trial, Officer Moore testified that he had compared the fingerprints on the screen and the check box with Cook's fingerprint. (3 Rep. R. at 58-59.) He determined that the two fingerprints left at Kennedy's apartment had 15 points of comparison and were, thus, a positive match to Cook's fingerprint. ( Id. at 61-63.) Officer Terko verified Officer Moore's findings. ( Id. at 68.)
A fingerprint with twelve points of comparison is considered a positive identification. (3 Rep. R. at 62.)
The state habeas courts found that the fingerprint evidence was adequately tested and properly admitted, even in the absence of Officer Terko's testimony:
The Court finds that Officer Moore, the officer who conducted the fingerprint comparison[,] was established as an expert in the field of fingerprint comparison.
The Court finds that Officer Moore examined the fingerprints in State's Exhibits 2 and 3 on two occasions.
The Court finds that Officer Moore found at least fifteen points of identification on each of the latent fingerprints in State's Exhibits 2 and 3.
The Court finds that Officer Moore testified that under FBI rules if twelve points of identification are found, the prints were made by the same finger.
The Court finds that the first fingerprint comparison done by Officer Moore was verified by Officer Terko of the Dallas Police Department, who has been in the Fingerprint Comparison Section of the Dallas Police Department for over twenty years.
The Court finds that the Applicant has failed to allege any facts as to why Officers Moore and Terko were not qualified to examine fingerprints or as to how their examination of the fingerprints was inadequate.
The Court finds that the State presented sufficient evidence that the fingerprints introduced at trial were adequately examined by experts.
(4 State Habeas R. at 35.) There is no evidence that the state courts' findings resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. Indeed, this evidence was properly admitted and did not violate Cook's constitutional rights. E.g., United States v. Henderson, 588 F.2d 157, 159-60 (5th Cir.), cert. denied, 440 U.S. 975 (1979); Wright v. Dretke, No. 3:01-CV-472-K, 2004 WL 438941, at *31 (N.D. Tex. Mar. 10, 2004). The absence of Officer Terko's testimony did not violate Cook's confrontation rights: Officer Moore independently tested Cook's fingerprints, was available for cross-examination at trial, and did not rely on the verification report, which was never admitted into evidence. United States v. Williams, 447 F.2d 1285, 1289-90 (5th Cir. 1971), cert. denied, 405 U.S. 954 (1972). Thus, the evidence was legally sufficient. Gibson, 947 F.2d at 786.
Miranda Violation
Cook argues that he was not given the required Miranda warnings until 34 days after the arrest warrant was issued. (Federal Pet. at 7; Pet'r Sep. Mem. at 7-8.) Assuming Cook did not timely receive the Miranda warnings, no constitutional violation occurred because Cook did not incriminate himself to the authorities. (4 State Habeas R. at 32.) Miranda warnings are prophylactic only, and the absence of the warnings is not, in and of itself, a constitutional violation. Chavez v. Martinez, 538 U.S. 760, 772-73 (2003); United States v. Smith, 7 F.3d 1164, 1170 (5th Cir. 1993); United States v. Harrell, 894 F.2d 120, 125 (5th Cir.), cert. denied, 498 U.S. 834 (1990). Cook is, thus, not entitled to habeas corpus relief.
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: deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show that (1) counsel's performance was deficient in that the errors counsel made were so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 687, 694. 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 of the prongs. 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.
Cook'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 denial of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Cook asserts that trial counsel was constitutionally ineffective when he:
1. waived the ten-day preparation time without Cook's consent;
2. failed to conduct an independent investigation; and
3. did not challenge the Miranda violation. (Federal Pet. at 7; Pet'r Sep. Mem. at 12.)
As stated by the state habeas courts, Cook has failed to specify which ten-day period he was denied. See TEX. CODE CRIM. PROC. ANN. arts. 27.11, 27.12, 28.01 (Vernon 1989). Further, Cook was indicted on October 1, 1999 and not tried until May 23, 2000, which belies his claim that he did not receive ten days to prepare for trial. (4 State Habeas R. at 42; 3 Rep. R. at 1.) Thus, counsel did not waive the preparation time and cannot be held deficient. Cf. Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983). Additionally, Cook does not argue how he was prejudiced by any waiver.
Cook's failure-to-investigate claim likewise fails. In order to establish that counsel was ineffective due to a failure to investigate the case or to discover and present evidence, Cook must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp. 2d 661, 691 (S.D. Tex. 2001). Cook's conclusory allegation fails to meet his burden of specificity. Thus, Cook fails to establish either deficient performance or prejudice on these claims. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Additionally, the state habeas courts found that counsel had stated in the trial court that he had visited the crime scene, contacted a witness, and had been given access to the State's evidence before trial. (4 State Habeas R. at 35.) This uncontroverted evidence precludes a finding of deficient performance. Smith, 696 F.2d at 367.
Cook has also failed to show deficient performance regarding his allegation that counsel was ineffective for failing to object or raise an issue regarding the lack of any Miranda warnings. As stated above, Cook did not give any incriminating statements to the police; thus, there was no Miranda violation. Accordingly, counsel's performance cannot be held defective because any argument on this issue would have been meritless. See, e.g., Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (holding counsel not deficient for failing to make frivolous objection to correct statement regarding Texas law), cert. denied, 525 U.S. 1174 (1999); 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) (holding counsel not deficient for failing to make meritless argument).
Cook has failed to establish ineffective assistance as required by Strickland, and the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Summary
Cook is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Cook 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.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and Cook's motion for summary judgment be DENIED.
INSTRUCTION FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United State District Clerk shall serve a copy of these findings, conclusions, and recommendation on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions, and recommendation must serve and file written objection within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. A party's failure to file such written objections to these proposed findings, conclusions, and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusion, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).