Opinion
No. 3:01-CV-0289-L
April 8, 2002
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Kevin Glenn Cupples is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On February 12, 1998, a jury convicted petitioner of aggravated assault on a public servant. (Pet. for Writ of Habeas Corpus (Pet.) ¶¶ 2-6); Reporter's Record, Vol. III at 62 [hereinafter cited as RR-III]. The jury assessed punishment at ninety-nine years imprisonment. RR-III at 106. Consequently, the court sentenced him to that period of incarceration. Id . at 107.
Petitioner appealed his conviction. (Pet. ¶ 8.) On April 27, 1999, the Fifth District Court of Appeals of Texas at Dallas affirmed the conviction. Cupples v. State, No. 05-98-00371-CR, 1999 WL 243632, at *3 (Tex.App.-Dallas Apr. 27, 1999, pet. ref'd) (not designated for publication). On December 6, 2000, the Texas Court of Criminal Appeals denied petitioner's second state petition for writ of habeas corpus without written order on the findings of trial court after a hearing. Ex Parte Cupples, No. 28,940-02, slip op. at 1 (Tex.Crim.App. Dec. 6, 2000).
Petitioner's first state writ challenged a different conviction and a parole revocation. It is thus irrelevant to the disposition of he instant federal petition.
In February 2001, petitioner filed the instant petition for federal habeas relief. In April 2001, the Court granted him leave to amend and accepted pages two through four as a supplement to his federal petition. On June 22, 2001, respondent filed an answer to the petition and provided the state-court records. On July 3, 2001, petitioner filed a response to the answer.
Factual Background: The Court of Appeals for the Fifth District of Texas at Dallas summarized the evidence as follows:
Dallas police officer Danny Haulbrook testified he was on duty, patrolling, in uniform, in a marked squad car, on the day of the offense. Haulbrook testified he saw appellant [(Cupples)] around 2:00 a.m. standing next to a white Chevrolet talking to at. African-American male in the parking lot of the Triple C Motel. Haulbrook pulled his squad car into the parking lot and made eye contact with appellant. Appellant immediately discontinued his conversation, got into the Chevrolet, and left. Haulbrook became suspicious because appellant left as soon as Haulbrook pulled into the parking lot. When leaving the motel parking lot, appellant did not stop before entering the roadway nor did he signal when turning at the intersection. Haulbrook turned on his overhead lights and his takedown lights to stop appellant for the traffic offenses. Haulbrook testified that at first appellant did not stop, but he did not attempt to speed away in the car. When appellant finally stopped the car, he slammed on the brakes, threw the car into park, and jumped from the vehicle.
Haulbrook saw "a hand motion" and "heard a report of a gun." Haulbrook did not see a gun. Haulbrook said he ducked down below the dash and pulled forward slowly in his police car to divert appellant. The car struck appellant, knocking him to the ground. At that point, Haulbrook stopped his vehicle and jumped out with gun in hand. Appellant got up and began running. Haulbrook chased appellant on foot.
Dallas police officer Wendell Jones testified he was on patrol and saw that Haulbrook had stopped a white vehicle. Jones testified he saw the silhouette of a person jump from the stopped vehicle. Jones heard on the police radio that shots had been fired. He then saw the white vehicle begin to drive away. Jones stopped the vehicle and secured the male occupant and female driver of the car. While holding the two at gunpoint, Jones saw another man standing on the curb. Jones directed the man to sit on the curb and not move. Soon other officers arrived and secured the man on the curb. Jones testified that he got the man and woman out of the car, conducted a cursory search, and saw a tire with a chrome rim on it in the back seat. J one; knew from experience that. such a rim was expensive and was of a type often stolen. Jones said the man and woman in the car and the man standing on the curb were all taken into custody. Jones also testified that he saw a gun on the ground. The gun was a type that was cheaply made and could discharge when dropped.
Dallas police officer John Cashman testified that he heard Haulbrook announce on the police radio that he was stopping a vehicle for a traffic violation. Caseman heard the "shots fired" broadcast, proceeded to the scene, got out of his vehicle, and helped chase appellant through the woods. Cashman caught appellant and found an empty holster in appellant's waistband and a live .380-caliber bullet in appellant's pocket.
Dallas police officer Tommy Pettiet testified he was working undercover, in plain clothes, driving an unmarked truck on the night of the offense. Pettiet was patrolling in the area where Haulbrook stopped appellant. Pettiet saw Haulbrook following a white car and heard over the police radio that Haulbrook was trying to stop the vehicle for a traffic violation. Pettier heard a gunshot and radioed that shots had been fired. Pettiet saw a man running through a parking lot toward a wooded area. Pettiet then parked his vehicle, waited, and watched the woods where appellant had run until he saw another officer capture appellant.
Dallas police officer James Vinyard conducted an inventory search of the car appellant was driving. Vinyard testified that he photographed three tires in the trunk of tie car and one tire in the back seat. Vinyard also observed two boxes of ammunition on the floorboard of the car. Vinyard recovered and marked a semi-automatic weapon with the magazine protruding slightly and an empty casing at the scene. Vinyard testified there were no fingerprints on the gun. Vinyard testified that if the gun had been dropped, it could have discharged, but the next bullet could not enter the chamber with the magazine out of place. Vinyard testified that based on his experience, the position of the ejected shell casing, and the live round in the chamber of the gun, it was his opinion the gun had been fired before it was dropped.
Jamie Carroll testified that on the night of the offense, she was riding in appellant's grandmother's car with appellant and another man, John Croker. Appellant was driving. Carroll said that they later picked up Jason Allsbrook and went to the Triple C Motel. Carroll testified that Allsbrook was standing outside the car. When a police car pulled into the parking lot, Allsbrook got into the car and appellant drove away. When the police officer tried to pull them over, Croker said he had a gun and threw it into Carroll's lap. Carroll screamed, and appellant grabbed the gun, jumped out of the car, and began to run. Carroll testified that when the police car struck appellant in the back of the knees, appellant fell and the gun discharged. Appellant then got up and ran away.Cupples v. State, No. 05-98-00371-CR, 1999 WL 243632, at *2-3 (Tex. App, —Dallas Apr. 27, 1999, pet. ref'd) (not designated for publication).
Substantive Issues: Petitioner claims he is being held unlawfully because (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court made errors in the admission evidence; and (3) his trial attorney rendered ineffective assistance. (Pet. at 7-8, including attached pages 7a through 7d.) Exhaustion: Respondent concedes that petitioner has sufficiently exhausted all state remedies for the claims raised in the instant petition.
Evidentiary Hearing: Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the stare-court records, an evidentiary hearing appears unnecessary.
II. Standard of Review
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
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.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 122 S.Ct. 194 (2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if 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." 529 U.S. at 407. "[A] federal habeas court making the "unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id . at 409; see also, Penry, 532 U.S. at 793 .
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the stare prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e) (1); see also, Sumner v. Mata, 449 U.S. 539 (1981).
Petitioner raised his insufficiency claims on direct appeal. See Cupples v. State, No. 05-98-0037 1-CR, 1999 WL 243632, at *1 (Tex.App. — Dallas Apr. 27, 1999, pet. ref'd) (not designated for publication). The appellate court found no merit to the claims. Id. at *1-2
Petitioner raised each of his instant claims in his second state writ. S.H. Tr. at 2-4. The trial court submitted findings to the Texas Court of Criminal Appeals regarding the second state petition. Id . at 61-65. It found no erroneous admissibility ruling. Id . at 63. It found no ineffective assistance of counsel. Id . at 63-64. It deferred to the appellate court's decision on the insufficiency claims. Id . at 62-63. The Texas Court of Criminal Appeals denied the second state writ without written order on the findings of trial court after a hearing. Ex Parte Cupples, No. 28,940-02, slip op. at 1 (Tex.Crim.App. Dec. 6, 2000). In Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). In this instance, therefore, the state court rejected the instant claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
"S.H. Tr." refers to the state habeas record attached to Ex Parte Cupples, No. 28,940-02, slip op. (Tex.Crim.App. Dec. 6, 2000).
III. Examination of the Issues
Petitioner claims that he is being held unlawfully because (1) the evidence was legally and factually insufficient to support his conviction; (2) the trial court made errors in the admission of evidence; and (3) he received ineffective assistance from his trial attorney.
A. Sufficiency of the Evidence
Petitioner claims that the evidence is factually and legally insufficient to support his conviction for aggravated assault. Specifically, he claim that the State failed to prove intent or that he used or exhibited a weapon or that he threatened the complainant.
Texas state appellate courts are imbued with the authority to conduct factual sufficiency reviews of the evidence. The authority to conduct factual sufficiency reviews derives from the Texas Constitution and statutory authority and not from any federal constitutional right. Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App. 1996). The Texas courts more exacting factual sufficiency standard simply does not implicate federal constitutional concerns. On federal habeas review, the standard for reviewing the sufficiency of the evidence is supplied by Jackson v. Virginia, 443 U.S. 307 (1979). Petitioner's factual sufficiency claim thus fails, because he has shown no deprivation of any federally-secured right. Neither the United States Supreme Court, nor the Fifth Circuit Court of Appeals has recognized factual insufficiency as a valid basis for habeas relief. The sole constitutionally cognizable claim regarding the sufficiency of the evidence appears in Jackson.
The state disposition of the legal sufficiency-of-the-evidence claim appears consistent with Jackson. "A criminal defendant has a federal due process right to be convicted only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense." Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal courts, nevertheless, have extremely limited habeas review of claims based on the sufficiency of the evidence. When reviewing such claims, the relevant question "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 . Courts must apply this standard "with explicit reference to the substantive elements of the criminal offense as defined by state law." Id . at 324 n. 16.
When "faced with a record of historical facts that supports conflicting inferences [courts] must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id . at 326. Under Jackson, furthermore, "the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). The trier of fact "is solely responsible for determining the weight and credibility of the evidence." United States v. Ramirez, 233 F.3d 318, 320 (5th Cir. 2000). Courts view "any required credibility determinations in the light most favorable to the guilty verdict." United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000), cert. denied, 532 U.S. 959 (2001). They do not "second-guess the weight or credibility given the evidence." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).
The standard of review enunciated in Jackson applies whether the evidence is director circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998). Federal courts, furthermore, apply the "standard looking to the state's substantive law, giving great weight to the state court's determination." Miller v. Johnson, 200 F.3d 274, 286 (5th Cir.), cert. denied, 531 U.S. 849 (2000). State statutes and case law bind the courts in their determination of the elements of an offense. Foy, 959 F.2d at 1313 . " Jackson requires . . . that the review occur 'with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n. 16). On federal habeas review this Court should only determine "whether the evidence was constitutionally sufficient to convict [petitioner] of the crime charged." Id . at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)).
In this instance, the indictment generally charged petitioner with aggravated assault on a public servant. S.H. Tr. at 80. It specifically charged that, on or about August 29, 1997, in Dallas County, Texas, petitioner
unlawfully then and there knowingly and intentionally threaten DANNY HAULBROOK, hereinafter called complainant, with imminent bodily injury, and said defendant did use and exhibit a deadly weapon to-wit: a firearm, during the commission of the assault, and said complainant was at the time of the offense a public servant, namely, a City of Dallas Police Officer engaged in the lawful discharge of an official duty, and said defendant knew that complainant was a public servant.Id .
Under Texas law, a person commits assault when he "intentionally or knowingly threatens another with imminent bodily injury." TEX. PENAL CODE ANN. § 22.01(a)(2) (Vernon 1994). The use or exhibition of a deadly weapon during an assault transforms simple assault into aggravated assault. See id . § 22.02(a)(2). An aggravated assault is a first degree felony, if the offense is committed "against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty." Id . § 22.02(b)(2). An actor, furthermore, "is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant." Id. § 22.02(c) .
With specific reference to Jackson, the state court denied the legal-sufficiency claim raised on direct appeal. See Cupples v. State, No. 05-98-00371-CR, 1999 WL 243632, at *2 (Tex.App.-Dallas Apr. 27, 1999, pet. ref'd) (not designated for publication). That denial appears consistent with Jackson. The denial, furthermore, involves no unreasonable application of Jackson.
In this instance, petitioner attacks the sufficiency of the evidence on several fronts. He contends that no trial testimony or other evidence shows that he pointed a weapon at the complainant, made any verbal threats that he would use a gun, or made any threatening moved directed at the complainant. He also contends that no trial testimony or other evidence shows that the complainant witnessed a weapon in his possession, that anyone fired a gun in the complainant's general direction; or where the bullet traveled. He thus argues that the evidence was insufficient to show an intentional and knowingly perpetrated act.
Dallas Police Officer Danny Haulbrook testified that he followed petitioner in his squad car and tried to stop him for several traffic violations. Reporter's Record, Vol. II at 97-101 [hereinafter cited as RR-II]. He testified that after he turned on his police lights, petitioner finally pulled over, stopped the car, and quickly jumped from the vehicle. Id . at 101-06. He testified that petitioner "took about two steps" from the vehicle and then the Officer "saw a hand motion" and "immediately heard a gunshot." Id . at 106-07. The Officer testified that petitioner's "arm just came across his body" and pointed toward the Officer. Id . at 107. He further testified that, when the shot was fired, he "realized" that he "had been shot at" so he took "evasive action to keep from getting hurt, keep from being shot at again." Id . at 108. He testified that he "tried to duck below the dash" and then "accelerated" the squad car, until it struck petitioner and knocked him to the ground. Id . at 108-09. He testified that petitioner had already resumed running away, before the Officer could apprehend him. Id . at 109. The Officer specifically testified that petitioner "fired at" him. Id . at 110, 117. He also testified, however, that he did not see a gun when he heard the gunshot. Id . at 106-07. He testified that he did not see the gun, until after petitioner had been apprehended. Id . at 118. He then "saw the gun laying in the street exactly where [the Officer] hit [petitioner] with the squad car." Id .
The defense provided the alternate theory that the gun accidently discharged after Officer Haulbrook hit petitioner with the squad car. Jamie Carroll, petitioner's only witness at the guilt innocence stage, testified that the gun discharged after petitioner was struck by the police car. RR-II at 190-92.
The testimony of Officer Haulbrook of itself provides sufficient evidence that petitioner intentionally and knowingly threatened a known public servant (Officer Haulbrook) with imminent bodily injury by firing a pistol at the Officer. Petitioner, nevertheless, tried to convince the jury that the gun accidentally discharged when dropped to the ground. The testimony of Detective James Vinyard, however, disrupts that theory. He testified that, on the evening of the offense, he found a semi-automatic pistol with the magazine somewhat dislodged. RR-II at 55-56, 84. He further testified that, although that type of weapon could discharge upon being dropped, it would be unable to feed a second round into the firing chamber with the magazine dislodged as it was when found. Id . at 64-65. He also testified that the firing chamber contained a round when he found the pistol. Id . at 67, 83. He specifically testified that, if the gun hit the ground hard enough to dislodge the magazine and discharge a bullet, then it would not have "re-chambered another shell and made the thing ready to fire." Id . at 69, 87. He opined that, based upon his experience with hundreds of crime scenes, the magazine dislodged when petitioner dropped it to the ground. Id . at 88-89. He further opined that he believed the gun to have been fired "before it was dropped." Id . at 89. He also testified that he found the spent shell casing in a location consistent with petitioner shooting at Officer Haulbrook. Id . at 86.
Petitioner has failed to carry the heavy burden imposed by 28 U.S.C. § 2254(d). This Court must view the evidence in a light most favorable to the prosecution. It presumes that the trier of fact resolved all conflicting inferences suggested by the evidence in favor of the prosecution and defers to that resolution. From all of the evidence, a rational trier of fact could find that petitioner intentionally and knowingly shot at a public servant. That the evidence of petitioner's intent is circumstantial does not alter the sufficiency of the evidence analysis. From the evidence, a rational trier of fact could thus convict petitioner of aggravated assault on a public servant.
With the testimony of Officer Haulbrook and Detective Vinyard, the State presented sufficient evidence to support petitioner's conviction. It does not matter that no evidence directly shows that petitioner pointed the weapon at the complainant, made any verbal threats about using the gun, or made any directly threatening moved directed at the complainant. It is likewise immaterial that the complainant did not witness a weapon in petitioner's possession, that no one specifically saw petitioner fire the gun in the complainant's general direction, or that no one presented evidence about where the bullet traveled. From the evidence presented, one can make a reasonable inference that, when petitioner made the "hand motion" witnessed by Officer Haulbrook petitioner was in fact shooting at the officer. Other evidence of record supports that inference. The testimony of Detective Vinyard furthermore, dispels the notion that the gun accidently discharged when petitioner dropped it. While the record might support conflicting inferences about what exactly happened, the courts must presume that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to such presumed resolution. Jackson v. Virginia, 443 U.S. 307, 326 (1979).
Applying the Jackson standard to the instant matter and after conducting a thorough review of the record, the Court finds that a rational trier of fact could have found that the evidence presented in petitioner's trial established the essential elements of aggravated assault on a public servant beyond a reasonable doubt. The decision of the state court appears consistent with clearly established Federal law. The decision, furthermore, appears to be a reasonable application of such law. See 28 U.S.C. § 2254(d)(1) . The decision appears to be based upon a reasonable determination of the facts n light of the evidence presented. See id . § 2254(d)(2). Accordingly, the undersigned Magistrate Judge recommends that petitioner's claim of legal insufficiency of the evidence be denied.
B. Admissibility of Evidence
Petitioner argues that the trial court erroneously admitted into evidence photographs of tires that the State then suggested were stolen. He argues that the State proffered no evidence that the tires were stolen. He raised this claim in his second state writ. S.H. Tr. at 22-34. The state habeas trial court specifically found that "[i]nadmissible evidence was not admitted into evidence during the trial." Id . at 63. The Texas Court of Criminal Appeals denied the second state writ on the findings of the trial court. Ex Parte Cupples, No. 28,940-02, slip op. at 1 (Tex.Crim.App. Dec. 6, 2000).
Evidentiary rulings made during a state trial are matters of state law that are not subject to re-examination by the federal courts. It is not "the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In habeas actions, federal courts "do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding." Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000). The erroneous admission of prejudicial evidence "does not justify habeas relief unless the evidence played a "crucial, critical, and highly significant' role in the [verdict]." Id .
A petitioner is entitled to federal habeas relief due to trial error only if "the error 'had substantial and injurious effect or influence in determining the . . . verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also, Trevino v. Johnson, 168 F.3d 173, 184-85 (5th Cir. 1999) (applying the Brecht standard to a habeas petition filed after enactment of the AEDPA).
[U]nder Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict. We recognize, however, that if our minds are "in virtual equipoise as to the harmlessness," under the Brecht standard, of the error, then we must conclude that it was harmful.Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)). To be entitled to federal habeas relief due to a trial error, petitioner must show the error actually prejudiced him. Brecht, 507 U.S. at 637 .
"[A] federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling also violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair." Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997). A fundamentally unfair trial violates the Fourteenth Amendment right to due process. Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994). A trial is deemed "unfair" when it has been "largely robbed of dignity due a rational process." Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985) (citation omitted).
The Court discerns no error in the admission of the photographic or testimonial evidence relating to alleged stolen tires. The stare court found that it had not admitted any inadmissible evidence at trial. The Texas Court of Criminal Appeals adopted that finding. In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). In view of the state ruling of admissibility and the denial of the second state petition for writ of habeas corpus, this Court will defer to the state-court determination of Texas law. Finding the evidence properly admitted under Texas law, the Court is unable to find petitioner's trial rendered fundamentally unfair by any state-court admissibility ruling. Petitioner is entitled to no habeas relief on the alleged error of stare law.
Petitioner is entitled to no habeas relief on this claim even assuming the trial court erred in admitting the evidence related to the alleged stolen tires. Petitioner contends the evidence is irrelevant to his case. The admission of irrelevant evidence is not an error of constitutional magnitude, however, unless it was so extreme as to result in a denial of a constitutionally fair proceeding. Petitioner was not denied a constitutionally fair trial by the admission of the evidence relating to the alleged stolen tires. He has not shown that such evidence had a substantial and injurious effect or influence on the verdict. He has not shown how the admission of such evidence actually prejudiced him. The alleged inadmissible evidence does not appear to have played a crucial, critical, or highly significant role in the verdict. Sufficient evidence existed from which the jury could convict petitioner. Petitioner is entitled to no habeas relief due to the alleged trial court error. If the trial court erred, the error is harmless within the meaning of Brecht.
The Texas Court of Criminal Appeals, furthermore, addressed this claimed trial court error on the merits and rejected it. Ex Parte Cupples, No. 28,940-02, slip op. at 1 (Tex.Crim.App. Dec. 6, 2000). That adjudication does not appear inconsistent with precedent of the United States Supreme Court. It involves no unreasonable application of such Supreme Court. It appears based upon a reasonable determination of the facts in light of the evidence presented. Accordingly, under 28 U.S.C. § 2254(d), as amended by the AEDPA, petitioner may obtain no habeas relief on this claim.
C. Ineffective Assistance of Counsel
In the instant petition and supplement thereto, petitioner also claims that his trial attorney rendered ineffective assistance in that the attorney failed to conduct a reasonable investigation into his defense that the gun accidently discharged upon being dropped. More specifically, he claims the attorney failed to test the weapon to determine whether it would discharge upon being dropped and whether the magazine could have been dislodged after such discharge and after putting another round in the firing chamber.
The trial court found no ineffective assistance of trial counsel. S.H. Tr. at 63. The state disposition of the ineffective assistance claims raised by petitioner appears consistent with existing precedent of the United States Supreme Court. Such disposition involves no unreasonable application of clearly established precedent of the United States Supreme Court. Nor does it appear to be based upon any unreasonable determination of the facts in light of the evidence presented.
To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id . at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689 . Further, "[t]he reasonableness of counsel's actions maybe determined or substantially influenced by the defendant's own statements or actions." Id . at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id . at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96 .
Petitioners must "affirmatively prove prejudice." Id . at 693. To establish prejudice, they must "show the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented [at trial]," confidence in the trial's outcome would be undermined. See Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Petitioner contends that testing the gun "would have shown" that the "gun could have fired upon impact with ground," then "rechambered a round," before dislodging the magazine. (Pet. at 7c.) The state court held a hearing on the state petition for writ of habeas corpus in which the court took testimony on petitioner's claim of ineffective assistance. See Tr. Writ of Habeas Corpus Hr'g at 6. Petitioner therein testified that the pistol discharged, when he dropped it upon being struck by the police car. Id . at 8. He testified that he wanted his attorney to test the gun to show that it "was faulty." Id . at 9. He stated that, "[i]f the pistol would have been tested and it showed that the pistol fired when dropped, it would have to have fired when it was dropped." Id . at 12.
Trial counsel also testified at the hearing on the state writ. He testified that petitioner wanted the gun checked for "faulty discharge." Id . at 32. Counsel further testified that he did not pursue such testing, because in his opinion the results would not affect the outcome of trial. Id . at 32-33, 44-45. He also testified that had such testing shown the gun to be "a piece of trash" such evidence would have added nothing to the case, because Officer Vinyard had also testified as to the poor quality of the gun and the possibility that it could discharge upon being dropped. Id . at 47-48. The attorney further testified that, at trial, it essentially came down to whose version the jury was to believe — that of Officer Haulbrook or that of Jamie Carroll. Id . at 48. He testified that the quality of the weapon mattered less once the Officer testified that the shot occurred before he hit petitioner with the police car. Id .
Jamie Carroll testified that the gun discharged after petitioner was struck by the police car. RB-II at 190-92. Officer Haulbrook, on the other hand, testified that the discharge occurred prior to him hitting petitioner with the car. Id . at 108-09.
Petitioner has demonstrated no prejudice from the alleged deficiency of counsel. The Court, furthermore, finds the claim conclusory. Petitioner has not shown what the requested testing would actually show. He merely speculates that the results would be beneficial to his case. Claiming that an attorney failed to investigate, without more, is insufficient to find that the attorney rendered ineffective assistance. Petitioner has not presented the results of any test that would have created a reasonable probability that the outcome of his trial would have differed with the admission of the testing results. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Even without the requested testing, furthermore, the record contains evidence that the weapon was of poor quality and could discharge upon being dropped. The case, moreover, boiled down to whose version the jury chose to believe. Testing the weapon and presenting independent evidence of its poor quality would not create a reasonable probability that the jury would have chose to believe the version presented by the defense. Petitioner has not shown a reasonable probability that the outcome of his trial would have been different in the absence of the alleged deficiency of counsel. He presents nothing to undermine confidence in the verdict. He has not affirmatively shown prejudice. Consequently, the claims of ineffective assistance of counsel fail.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) 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. Failure to file written objections to the proposed findings, conclusions, 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, 1428-29 (5th Cir. 1996) (en banc) .