Opinion
7:99-CV-120-R
June 21, 2002
MEMORANDUM OPINION AND ORDER
Came onto be considered the papers and pleadings filed in this action and the Court finds and orders as follows:
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by an inmate confined in the Clements Unit of the Texas Department of Criminal Justice in Amarillo, Texas. On June 26, 1996, upon a plea of not guilty. Costilla was tried by jury and convicted for the offense of possession of a controlled substance with intent to deliver. Petition ¶¶ 1-6; State v. Costilla, No. 4839 (50th Judicial District of Baylor County Texas). Transcript at p. 59. His sentence, enhanced by a prior conviction, was assessed at ninety-nine years confinement. Id. Petitioner filed a direct appeal and, on September 11, 1997, his conviction was affirmed. Petition ¶¶ 8 9. Costilla's petition for discretionary review was refused on February 18, 1998. Respondent's Answer, Exhibit "A." He filed one state habeas application which, on May 5, 1999, was denied without written order on findings of the trial court. See Petition ¶¶ 10-11; In re Costilla, App. No. 41,239-01 at Cover.
In support of his petition, Costilla presents the following grounds for relief:
1. The trial court erred by allowing testimony concerning other wrongs or acts to prove the character of Petitioner in order to show that he acted in conformity therewith;
2. The trial court erred by admitting transcripts concerning other wrongs or acts to prove the character of Petitioner in order to show that he acted in conformity therewith;
3. The trial court erred by admitting audio tapes concerning other wrongs or acts to prove the character of Petitioner in order to show that he acted in conformity therewith;
4. The trial court erred by admitting a controlled substance into evidence in an attempt to prove other wrongs or acts to prove the character of Petitioner in order to show that he acted in conformity therewith;
5. The trial court erred by denying Petitioner's request for a competency hearing to determine whether Michael Dean Arnold was competent to be a witness;
6. The person who consented to the search of Petitioner's apartment did not have the authority to do so and the state never proved that the individual possessed such authority;
7. Two of the state's key witnesses violated "The Rule";
8. The prosecutor's statements to the jury constituted an impermissible plea for law enforcement;
9. The prosecutor wrongfully interjected personal opinions in his statements to the jury;
10. The prosecutor improperly urged the jury to consider the time Petitioner would actually serve in prison;
11. The superceding indictment broadened the charges of the initial indictment which was still pending;
12. Petitioner was denied effective assistance of counsel at trial, and;
13. Petitioner was denied effective assistance of counsel on appeal.
See Attachment to Amended Petition.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"), Pub.L. 104-132, 110 Stat. 1217, under which we now have a heightened standard of review in federal habeas corpus proceedings. Title I of the Act substantially changed the way federal courts handle such actions. The AEDPA applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Therefore, Title I of the Act applies to his petition.
The AEDPA provides in pertinent part:
(d) An application for 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 the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d) (West 2002).
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion apposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523 (2000); Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, 531 U.S. 1002, 121 S.Ct. 508 (2000). Under § 2254(d)(2), the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court (1) unreasonably applies the correct legal rule to the facts of a particular case or (2) it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407, 120 S.Ct. at 1520. The standard for determining whether a state court's application was unreasonable is an objective one. This standard of review applies to all federal habeas corpus petitions which, like the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Upon a finding of state court compliance with the "contrary to" clause of 28 U.S.C. § 2254 (d)(1), federal courts give deference to the state court's findings unless such findings violate the "unreasonable application" clause of 28 U.S.C. § 2254 (d)(2). Chambers, 218 F.3d at 363. The "unreasonable application" clause concerns only questions of fact. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001 (2001). The resolution of factual issues by the state court are afforded a presumption of correctness and will not be disturbed unless the habeas petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 771 (1981). Absent such evidence, the presumption of correctness is applied provided that the state court findings are evidenced in writing, issued after a hearing on the merits and are fairly supported by the record. E.g., Burden v. Zant, 498 U.S. 433, 111 S.Ct. 862, 864 (1991); Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994), cert. denied, 513 U.S. 1137, 115 S.Ct. 959 (1995); May v. Collins, 955 F.2d 299, 310 (5th Cir.), cert. denied, 504 U.S. 901, 112 S.Ct. 1925 (1992); 28 U.S.C. § 2254 (d).
In his first four grounds for relief, Costilla seeks to challenge the state court's admission of certain evidence which, he argues, violated his rights to equal protection and due process of law. Petitioner claims that the trial court erred by allowing the admission of testimony, transcripts, audio tapes and drugs into evidence because this was a wrongful effort to prove the character of Petitioner in order to show that he acted in conformity therewith when committing the crime alleged at trial. Attachment to Petition at pp. 1-3.
Errors of state law, including evidentiary errors, are not cognizable in habeas proceedings as such. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80 (1991). A state court's evidentiary ruling presents a cognizable habeas claim only where it runs afoul of a specific constitutional right or it renders the trial fundamentally unfair. Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993) (citing Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985)), cert. denied, 510 U.S. 1025, 114 S.Ct. 637 (1993). Fundamental unfairness may occur where certain testimony, erroneously admitted, plays a crucial, critical and highly significant role in the trial. Jernigan v. Collins, 980 F.2d 292, 298 (5th Cir. 1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2977 (1993).
Costilla has failed to demonstrate that the evidence at issue was erroneously admitted. The evidentiary rulings of which Costilla complains were addressed by the 11th Court of Appeals in the direct appeal of his conviction. The Court of Appeals found that, not only was the evidence allowable, the Texas Rules of Criminal Evidence required admission of the evidence. Costilla v. State, No. 11-96-343-CR pp. 1-2 (Tex.App. — Eastland 1997, pet ref'd). It is not the role of a federal habeas court to review a state court's interpretation of its own rules of evidence. See Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (stating that it is not the function of a federal habeas court to review a state's interpretation of its own law). The state court's ruling was not in conflict with clearly established federal law nor was it based on an unreasonable determination of the facts in light of the evidence. Therefore, Costilla cannot prevail on his first four grounds for relief.
Costilla next complains that the trial court erred by denying his request for a competency hearing to determine whether Michael Dean Arnold was competent to be a witness. Respondent argues that this ground for relief is procedurally barred from federal court review. Respondent's Answer p. 6.
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows (1) cause for the default and actual prejudice resulting from the alleged violation of federal law or (2) demonstrates that the failure to consider his federal claim will result in a fundamental miscarriage of justice. E.g. Smith v. Johnson, 216 F.3d 521, 524 (5th Cir. 2000); Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989). "[T]he fundamental miscarriage of justice exception is confined to cases of actual innocence, where the petitioner shows, as a factual matter, that he did not commit the crime of conviction." Smith, 216 F.3d at 524 (quoting Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)).
A review of the state records in the case at bar reflects that Costilla failed to present this ground for relief to the Texas Court of Criminal Appeals. See Petition for Discretionary Review, Costilla v. State, No. 1398-97 (Tex.Crim.App. 1998) (petition refused); Ex parte Costilla, App. No. 41,239-01 (p. 38). If a petitioner has not fully exhausted state remedies but the state court would now find the claim procedurally barred, there has been a procedural default for purposes of federal habeas relief. Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Were this Court to require petitioner to present this ground for relief to the Texas Court of Criminal Appeals in a second art. 11.07 habeas application, the application would be subject to dismissal under the Texas abuse-of-the-writ doctrine.
Texas Code of Criminal Procedure art. 11.07 § 4 embodies the state habeas abuse-of-the-writ doctrine. The statute provides as follows:
Sec. 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date. the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.
(b) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.
(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
Tex. Code Crim. Proc. Ann. Art 11.07 § 4 (Vernon 2002). The Texas abuse-of-the-writ doctrine "represents an adequate state procedural bar for purposes of federal habeas review." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845 (1998). This has been well established law in the Fifth Circuit since 1995. Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603 (1995). In the case at bar, Petitioner has failed to establish cause for the procedural default and actual prejudice as a result of the alleged violation of federal law or that failure to consider this ground for relief will result in a fundamental miscarriage of justice. Therefore, Petitioner's ground for relief No. 5 above is denied as procedurally barred.
In his sixth ground for relief, Costilla argues that the person who consented to the search of his apartment did not have the authority to give such consent and the state never proved that the individual possessed such authority. In essence, Costilla claims that the search was unlawful and any evidence obtained should have been suppressed by the trial court.
As a general rule, state court evidentiary rulings are a basis for habeas relief only where they render the entire trial fundamentally unfair. Mullen v. Blackburn, 808 F.2d 1143, 1145 (5th Cir. 1987). However, when a Fourth Amendment claim is involved, if the state has provided an opportunity for full and fair litigation of the matter, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an illegal search or seizure was introduced at trial. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052 (1976). Where state court procedures provide meaningful mechanisms for deciding and reviewing such decisions and the petitioner's opportunity to contest the introduction of evidence is not circumscribed, federal courts have no authority to scrutinize a state court's application of Fourth Amendment principles. Davis v. Blackburn, 803 F.2d 807, 808 (5th Cir. 1986); Billiot v. Maggio, 694 F.2d 98, 100 (5th Cir. 1982).
This Court takes judicial notice that the state courts of Texas permit motions to suppress evidence based upon unlawful searches and seizures. Although it does not appear that such a motion was filed by Costilla at trial, there is nothing in the record to suggest, and Petitioner makes no argument, that he was in any way precluded from raising such a challenge at trial. Costilla did challenge the validity of the search in his state habeas application and the Court of Criminal Appeals adopted the findings of the trial court wherein it was determined that Costilla's wife, who was living in the apartment at the time of the search, gave voluntary written consent for officers to conduct the search. Ex parte Costilla, App. No. 41,239-01 (pp. 88-89). Thus, the constitutional requirement of an opportunity to fully and fairly litigate the suppression issue in state court was satisfied and this court is precluded from considering the merits of Petitioner's Fourth Amendment claim.
In ground for relief No. 7, Petitioner claims that he is entitled to habeas relief because two of the state's key witnesses violated "The Rule." Costilla argues that The Rule was violated when Michael Arnold, a confidential informant, and Chuck Morris, a police officer, were seen speaking to each other during a trial recess. This issue was considered by the trial court in Petitioner's state habeas application. The court found that the two witnesses did not violate "The Rule." Ex parte Costilla, App. No. 41,239-01 (p. 89). The trial court's findings were adopted by the Court of Criminal Appeals. Id. at cover. As previously noted, the resolution of factual issues by the state court are afforded a presumption of correctness and will not be disturbed unless the habeas petitioner rebuts the presumption by clear and convincing evidence. Absent such evidence, the presumption of correctness is applied provided that the state court findings are evidenced in writing, issued after a hearing on the merits and are fairly supported by the record.
On this ground for relief; Costilla has presented nothing more than an allegation that the two witnesses were seen speaking to each other. "Although pro se habeas petitions must be construed liberally, 'mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'" Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989)). The state court finding that "The Rule" was not violated by the witnesses is fairly supported by the record. See Affidavit of Charles Robert Morris, Ex parte Costilla, App. No. 41,239-01 (pp. 81-82). Therefore, Costilla is not entitled to relief on this ground.
In his next three grounds for relief, Costilla claims that the prosecutor made improper statements to the jury. He argues that the prosecutor made an impermissible plea for law enforcement; that he wrongfully interjected personal opinions in his statements to the jury, and that he improperly urged the jury to consider the time Petitioner would actually serve in prison.
An improper jury argument rarely justifies federal habeas relief. A petitioner must show that the argument was so prejudicial that it denied him of a fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871 (1974); Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907 (1986). A trial is fundamentally unfair if the petitioner would not have been convicted but for the prosecutor's persistent and improper remarks. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986); Rushing v. Butler, 868 F.2d 800, 807 (5th Cir. 1989). The Court must look at the jury argument in the context of the entire trial. Kirkpatrick v. Blackburn, 777 F.2d at 281; Cobb v. Wainwright, 609 F.2d 754, 755 n. 1 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991 (1980). During closing argument the prosecutor is permitted to state what he believes to have been established by the evidence and to fairly comment on it. Whittington v. Estelle, 704 F.2d 1418, 1423 (5th Cir.), cert. denied, 464 U.S. 983, 104 S.Ct. 428 (1983).
In the case at bar, the prosecutor's comments, even if improper, were not so prejudicial that they deprived petitioner of a fundamentally fair trial. Costilla first complains that the prosecutor made an improper plea for law enforcement when, during the punishment phase of trial, he stated that Costilla should be prevented from selling cocaine to "our children." See State v. Costilla, No. 4839, Statement of Facts, Vol. IV, pp. 276-77. A review of the evidence adduced at trial reflects that the state established that Costilla's apartment, from which he was selling cocaine, was located less than 700 feet from a city park containing a playground for children. Id. at Vol. III, p. 127 and Vol. IV, pp. 262-63. Thus, the prosecutor's statement was a fair comment on the evidence.
Costilla next complains that the prosecutor improperly interjected his personal opinion in a statement to the jury during closing arguments of the guilt/innocence phase of trial when he stated that the only purpose for the type of small plastic baggies found in Costilla's apartment was to package and sell cocaine. Id. at Vol. III, pp. 204-05. Review of the trial record reflects that Carlton Hughes, an officer with the North Texas Regional Drug Enforcement Task Force testified that he had never seen anyone use the small one-quarter to one-inch baggies for anything other than selling drugs and that he knew of no other practical use for that type of baggy. Id. at Vol. III, pp. 57 74. Again, the prosecutor's statement was a fair comment on the evidence.
Finally, Costilla complains that, in assessing punishment, the prosecutor improperly asked the jury to consider how much time he would actually spend in prison. The record reflects that the prosecutor told the jury that the state would recommend the maximum sentence of 99-years or life in prison. Id. at Vol. IV, p. 274. He advised the jury not to worry about the distinction between a 99-year sentence and a life sentence because there would be no difference in the amount of time Costilla would serve under either sentence. Id. This comment does not ask the jury to consider how much actual time Costilla would spend in prison (i.e. — when he might be paroled). The statement only points out to the jury that there is no practical distinction between these two sentencing options if the jury decides to impose the maximum sentence. Therefore, Costilla is not entitled to habeas relief on this ground.
Moreover, the prosecutor's comments must be viewed from the context of the entire trial. Kirkpatrick v. Blackburn, 777 F.2d at 281; Cobb v. Wainwright, 609 F.2d at 755 n. 1. Viewed from that perspective, the prosecutor's comments clearly do not constitute a violation of petitioner's due process rights. The comments were brief; constituting an extremely minute portion of the extensive argument and evidence put before the jury. The first two comments were clearly relevant to evidence introduced at trial and the third was simply a statement clarifying that there was no practical difference between two of the sentencing options before the jury. Accordingly, the Court cannot conclude that the effect of these comments by the prosecutor deprived petitioner of a fundamentally fair trial.
In his eleventh ground for relief, Petitioner complains that the superceding indictment broadened the charges of the initial indictment which was still pending. Here, Costilla challenges the sufficiency of the superceding indictment under which he was convicted. It is well settled that "[t]he sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that it deprives the state court of jurisdiction." McKay v. Collins, 12 F.3d 66, 68 (5th Cir.) (citing Branch v. Estelle, 631 P.2d 1229 (5th Cir. 1980)), reh'g granted in part sub nom., Williams v. Collins, 12 F.3d 70 (5th Cir.), cert. denied, 513 U.S. 854, 115 S.Ct. 157 (1994); see also Morlett v. Lynaugh, 851 F.2d 1521, 1523 (5th Cir. 1988), cert. denied, 489 US. 1086, 109 S.Ct. 1546 (1989); Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987). An indictment is fatally defective in the context of a § 2254 proceeding only if no circumstances could exist under which a valid conviction could result from facts provable under the indictment; state law provides the reference point for determining whether an indictment is sufficient. Morlett v. Lynaugh, 851 F.2d at 1523; Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir. 1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006 (1984). When the question of sufficiency of an indictment has been presented to the state's highest court of appeals, consideration of the question is foreclosed in federal habeas corpus proceedings. McKay v. Collins, 12 F.3d at 68-69; Morlett v. Lynaugh, 851 F.2d at 1523; Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985).
The Texas Court of Criminal Appeals is the highest court in the state which has jurisdiction to review a petitioner's conviction. Tex. Code Crim. Proc. Ann. art. 4.04 § 2 (Vernon Supp. 1999). The record reflects that Costilla presented his claim concerning the adequacy of the indictment to the Texas Court of Criminal Appeals in his state habeas application. Ex parte Costilla, App. No. 41,239-01 p. 48. The Court of Criminal Appeals denied the application without written order on findings of the trial court, thereby, rejecting his claim.
By refusing to grant habeas relief, the Texas Court of Criminal Appeals necessarily, though not expressly, held that the trial court had jurisdiction and that Costilla's indictment was sufficient for that purpose. See Alexander v. McCotter, 775 F.2d at 599; Smith v. McCotter, 786 F.2d 697, 702 n. 3 (5th Cir. 1986).
Next, Petitioner seeks relief on his claim that he was denied effective assistance of counsel at trial. The Sixth Amendment of the United States Constitution guarantees a criminal defendant "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 687-91 694, 104 S.Ct. at 2064-66 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
It is not sufficient for a habeas petitioner to merely allege deficiencies on the part of counsel. He must affirmatively plead the resulting prejudice in his habeas petition. Hill v. Lockhart, 474 U.S. 52, 59-61, 106 S.Ct. 366, 371 (1985); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988). A court reviewing an ineffectiveness claim need not consider the two inquires under Strickland in any particular order since a failure to establish either requirement necessarily defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990), cert. denied, 498 U.S. 1033, 111 S.Ct. 694 (1991).
"It is well settled that effective assistance is not equivalent to errorless counsel or counsel judged ineffective by hindsight. (citations omitted). Rather, inquiry must be made into the totality of the circumstances surrounding counsel's performance to determine whether reasonably effective representation was provided." Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court reviewing an ineffectiveness claim must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional competence or that, under the circumstances, the challenged action might be considered sound trial strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Bridge v. Lynaugh, 838 F.2d at 773.
Costilla claims that counsel was ineffective for failing to question the state's witness, Margie Costilla, as to her authority to consent to the search of Costilla's apartment and as to the voluntariness of her consent. As previously discussed, the state habeas court found that Costilla's wife had legal authority to consent to the search and that her written consent was voluntary. Thus, it is clear that questioning her with regard to these issues would have been futile. Counsel cannot be found ineffective for failing to engage in futile cross-examination. Moreover, Costilla can show no prejudice resulting from counsel's alleged inadequacy.
Next Costilla complains that counsel was deficient for failing to object to the presence of a witness who remained in the courtroom after "The Rule" was invoked. Costilla does not name the witness but a review of the statement of facts from trial reflects that two witnesses, Chuck Morris and Curtis Priddy, were permitted by the court to remain in the courtroom pursuant to agreement between the attorneys. Morris was a police officer and had been involved in Costilla's arrest. At the time of trial he served on the prosecutor's staff as an investigator. With the court's approval, Morris testified first and his testimony was limited by the trial judge. State v. Costilla, No. 4839, Statement of Facts, Vol. III, pp. 4-9. He was also directed by the court to speak to other witnesses. Id. at p. 9. Because he testified first, Morris' testimony could not have been tainted by listening to other witnesses. Here, Costilla cannot show prejudice from counsel's failure to object to Morris' presence in the courtroom after he testified.
As to Curtis Priddy, the record reflects that he was the court's bailiff and he testified only to the fact that Costilla fled the jurisdiction of the court prior to his first trial date and that he was recaptured in Washington and extradited back to Texas. Id. at pp. 9-10. Costilla has failed to plead or prove any prejudice resulting from counsel's alleged failure to object to Priddy's presence in the courtroom. To the contrary, counsel agreed and the court agreed, that Priddy's presence in the courtroom would not prejudice Costilla because of the limited nature of his testimony. See id. Costilla is not entitled to habeas relief on this ground.
Costilla claims ineffectiveness on the part of counsel for failing to object to the prosecutor's allegedly impermissible jury arguments. He claims that counsel should have objected when the prosecutor made a plea for law enforcement, when he stated his personal opinions to the jury and when he urged the jury to consider how long Costilla would actually have to serve in prison. As discussed earlier in this opinion, the prosecutors statements to the jury were not improper. Counsel may not be deemed ineffective for failing to make unfounded and futile objections.
Next, Petitioner seeks habeas relief because counsel failed to object to a broadening of charges in the initial indictment which remained pending. As previously discussed, the state court found the indictment sufficient to vest the trial court with jurisdiction over Costilla's case. Here again, counsel cannot be deemed ineffective for failing to raise futile objections. Moreover, Costilla does not claim any prejudice resulting from counsel's alleged ineffectiveness.
Finally, Costilla claims that counsel was ineffective for failing to call witnesses who were willing to testify as to his good character. Complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what a witness would have testified are largely speculative. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 873 (1987). Where the only evidence of a missing witness's testimony is provided by the habeas petitioner, federal courts view his claims with great caution. Id. (citing Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir. 1985)). A meritorious claim of uncalled witnesses requires that a habeas petitioner show not only that the testimony would have been favorable, but also that the witness would have so testified during the proceeding. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Costilla's claim fails to meet these standards. He has failed to demonstrate that his uncalled witnesses possessed favorable information and that they would have so testified at the hearing. "Although pro se habeas petitions must be construed liberally, 'mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'" Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989). Costilla has failed to demonstrate any deficiency on the part of counsel in failing to call the unidentified witnesses and he has failed to plead or prove any resulting prejudice. Costilla's conclusory statements alone are insufficient to warrant habeas relief.
In his final ground for relief, Petitioner alleges that he was denied effective assistance of counsel on appeal. In a claim of ineffective assistance of counsel on appeal, a petitioner must demonstrate both that "counsel's errors were so serious that counsel was not functioning as the counsel guaranteed to the defendant by the sixth amendment" and "that the particular lapse was prejudicial, meaning that there is a reasonable probability that but for the error the ultimate result would have been different." McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.), cert. denied, 479 U.S. 965, 107 S.Ct. 466 (1986). This is the same standard set forth under Strickland for ineffective assistance of counsel at trial.
Costilla claims that counsel was ineffective on appeal because he failed to research and present on appeal the grounds for relief Costilla has raised in the instant action. The Constitution does not require that appellate counsel raise all non-frivolous grounds on appeal. Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 493 U.S. 970, 110 S.Ct. 419 (1989). And it certainly doesn't require that appellate counsel raise frivolous grounds on appeal. After a thorough review of the grounds raised in the instant action, this Court has determined that none of Costilla's grounds for habeas relief are meritorious. An appellate attorney is not ineffective when he fails to present non-meritorious grounds on appeal. Costilla's attack on counsel's representation is without merit.
Under 28 U.S.C. § 2254 (d):
An application for 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 the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of; clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.
The Texas Court of Criminal Appeals considered and denied Petitioner's claims for habeas relief. Ex parte Costilla, App. No. 41,239-01 at cover. Petitioner has failed to demonstrate that the state court's decision was contrary to or involved an unreasonable application of federal law or that the decision was based upon an unreasonable determination of the facts in this case.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DENIED.