Opinion
CIVIL ACTION NO. 4:03-CV-0785-A, (Consolidated with Civil Action No. 4:03-0786-A)
March 9, 2004
FINDINGS, CONCLUSIONS. AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.B. PARTIES
Petitioner Jeston R. Etheredge, TDCJ-ID #934424, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently housed at the Polunsky Unit in Livingston, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In October 1999, Etheredge was charged by separate indictment with indecency with a child by exposure in Cause Nos. 0745247D and 0745249D in the 297th District Court of Tarrant County, Texas. (1Clerk's R. at 3; 2Clerk's R. at 3.) Each indictment also included an enhancement paragraph alleging a prior 1988 felony conviction for credit card abuse in Dallas County, Texas. Etheredge's jury trial commenced on July 11, 2000, at which time Etheredge was 57 years old. The trial facts and procedural history of the case as set forth by the Second District Court of Appeals are as follows:
[Etheredge] would baby-sit N.F., a nine-year-old girl, while her mother and his wife were at work. R.W., a ten-year-old girl, would accompany N.F. to [Etheredge's] house on some occasions. While the girls were at his house, [Etheredge] would show the girls pornographic movies and magazines and sometimes would make lewd remarks. On many occasions, [Etheredge] would be lying in bed and would frequently pull off the sheet, saying "woops," and expose himself to the girls. The girls testified that they did not believe that [Etheredge] exposed himself accidentally.
[Etheredge] was charged by indictment with two counts of indecency with a child by exposure. [Etheredge] pled not guilty. The jury found him guilty and assessed punishment at a $10,000 fine and 20 years' confinement for each count, to run concurrently.Etheredge v. Texas, Nos. 2-00-273-CR 2-00-274-CR, slip. op. (Tex.App.-Fort Worth May 31, 2001) (not designated for publication).
Etheredge appealed the convictions, but, on May 31, 2001, in an unpublished opinion, the Second District Court of Appeals affirmed the trial court's judgments. Id. In turn, the Texas Court of Criminal Appeals refused his petitions for discretionary review on November 14, 2001. Etheredge v. Texas, PDR Nos. 1360-01 1361-01. Etheredge did not seek writ of certiorari. (Federal Pet. at 3.)
Etheredge filed two state applications for writ of habeas corpus, one for each conviction, in which he raised the majority of the claims presented herein. Ex parte Etheredge, Application Nos. 55,055-01 55,055-02. The Texas Court of Criminal Appeals denied both applications without written order on the findings of the trial court on March 26, 2003. Id. at cover. Thereafter, Etheredge filed two federal petitions for writ of habeas corpus, one for each conviction, in the United States District Court for the Northern District of Texas, Fort Worth Division, on July 2, 2003. The two actions were consolidated by order dated August 19, 2003. Dretke has filed a supplemental answer with supporting brief and documentary evidence, to which Etheredge has filed a reply.
See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
Dretke's original answer with brief in support argued solely that the action should be dismissed on limitations grounds. Dretke was granted leave to withdraw his original answer by order dated February 19, 2004.
D. ISSUES
Etheredge appears to raise the following grounds for relief:
1. He received "unequal justice under the law" due to his indigency;
2. He was "wrongfully convicted" in light of the contradictory, inconsistent, and thus false testimonies of the child victims;
3. The "overzealous" state prosecutors engaged in Prosecutorial misconduct by stating his or her "views, comments, and opinions" to the jury and by "not correcting" the false testimony of the child victims;
4. He received "unequal justice under the law" because he was denied a polygraph test to prove his innocence; and
5. He received ineffective assistance of counsel.
(Federal Pet. at 6-8 Attach; Pet'r "Appeal of his Motion of Wrongful Conviction.")
E. RULE 5 STATEMENT
Dretke believes that Etheredge has failed to sufficiently exhaust his state remedies as required by 28 U.S.C. § 2254(b)(1) as to one or more of the claims presented and that the claims are, thus, procedurally barred. (Resp't Answer at 7, 12.)
Because the undersigned United States Magistrate Judge recommends denial of the instant petition on the merits of the claims presented, the issue of exhaustion is not addressed. See 28 U.S.C. § 2254(b)(2).
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. UNEQUAL JUSTICE UNDER THE LAW
Under his first and fourth grounds, Etheredge contends that he is innocent of the charges and that he received "unequal justice under the law" because of his indigent status. (Federal Pet. at 6-8.) More specifically, he argues that, as an indigent defendant, he did not receive the "same justice" as other persons wrongfully convicted in that his claim of innocence was not taken seriously or investigated, but was, instead, ignored by the state prosecutors and state courts. He further argues that the denial of a polygraph test to prove his innocence, when others are given a polygraph test, constitutes unequal justice under the law. Finally, he argues that he was denied a "fair review" by the Texas Court of Criminal Appeals on his "appeal" because "it wasn't done by an attorney." First, the court notes that Etheredge has not adequately briefed his claims under these grounds, and, thus, the claims are waived. See Trevino v. Johnson, 168 F.3d 173, 181 n. 3 (5th Cir. 1999). He has provided copies of various "newspaper clippings," but has failed to state coherent arguments or cite to relevant case law in support of his claims.
Moreover, although Etheredge clearly requested that the state administer a polygraph test, he has no constitutional right to a polygraph test to prove his innocence. See generally United States v. Scheffer, 523 U.S. 303, 308-15 (1998) (providing discussion regarding polygraph evidence); Nethery v. Texas, 692 S.W.2d 686, 700 (Tex.Crim.App. 1985) (providing results of polygraph test are inadmissible in Texas for any purpose in a criminal proceeding). The police had the videotaped interviews of the child victims and corroborating evidence seized from Etheredge's residence. (4Rep. R. at 6-33.) Other than the results of a polygraph test, Etheredge does not state with specificity what a more thorough investigation by law enforcement would have revealed.
Nor does Etheredge have a constitutional right to counsel under the Equal Protection Clause in state discretionary appeals or habeas corpus proceedings. Pennsylvania v. Finley, U.S. 551, 555 (1987). The Equal Protection Clause "does not require absolute equality or precisely equal advantages" or "require the State to equalized economic conditions." Ross v. Moffitt, 417 U.S. 600, 612 (1974) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973), and Griffin v. Illinois, 351 U.S. 12, 23 (1956)). Federal habeas relief is available to a state prisoner only if the prisoner has been deprived of some right secured to him by the federal constitution or law of the United States. See Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). Claims of actual innocence are not cognizable on federal habeas review, and Etheredge's claims otherwise fail to implicate a federal constitutional violation. Dewthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000).
3. TESTIMONY OF CHILD WITNESSES
Under his second ground, Etheredge contends he was wrongfully convicted based on the testimony of the child victims. He argues that N.F.'s and R.W.'s testimony shows "they agreed to fabricate a basic story, but the flagrant discrepancies and inconsistencies in the details of their testimony also show that their story is false." (Pet'r Reply at 2, 9-11.) Again, Etheredge fails to adequately brief his argument under this ground. Nevertheless, it is well settled that it is within the sole province of the jury to assess the credibility of the witnesses and to resolve any inconsistencies and contradictions in their testimony. See United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987). Contrary to Etheredge's assertion, and assuming the jury believed and resolved the inconsistencies in N.F.'s and R. W.'s testimony, a rational jury could have found beyond a reasonable doubt that Etheredge committed the charged offenses. Jackson v. Virginia, 443 U.S. 307, 319 (1979).4. PROSECUTORIAL MISCONDUCT
Under his third ground, Etheredge contends that the state prosecutors engaged in Prosecutorial misconduct by stating their "views, comments, and opinions" to the jury during closing argument, which differed from the witness testimony, and by not correcting the known "false perjured testimony" of the victims. (Federal Pet. at 7.)
As noted by Dretke, Etheredge fails to substantiate his allegations of Prosecutorial misconduct under this ground. (Resp't Answer at 17.) RULES GOVERNING SECTION 2254 CASES, Rule 2(c). As to his first claim, Etheredge complains of the following "quote":
Much to their chargen [sic] appellant would insist on showing the girls . . . ponographic [sic] movies and magazines sometimes making lewd or inappropiate [sic] remarks and appellant would virtually always be lying in bed during these episodes and would frequently pull off the sheet saying, "whoops," it was clear to both girls that this exposure was anything but accidental, and when he did this he exposed his penis to the girls. (Federal Pet. at 7.)
Etheredge does not, however, specify where, and the undersigned is unable to locate such argument by the prosecutor in the record of the proceedings.
Etheredge appears to attribute the argument to one of the state prosecutors who represented the state during trial, however, he cites the court to the State's brief on appeal, wherein the statements are included in the "Statement of Facts," prepared by another attorney in the appellate division of the county district attorney's office. (Pet'r "Appeal of his Motion of Wrongful Conviction" at 4-5.) The "Statement of Facts" in the state's appellate brief is nothing more than that attorney's version of the facts. As a matter of Texas appellate law, mere assertions in a brief not supported by evidence in the record are not considered on appeal. See Franklin v. State, 693 S.W.2d 420, 431 (Tex.Crim.App. 1985). Thus, presumably, the state appellate court did not accept the state's assertions as established facts, but, instead, decided the appeal based on the facts supported by the record.
Etheredge also complains of the following argument:
That if you don't want Mr. Etheredge/Appellant back out on the streets forging your checks or stealing/using your credit cards without your permission you had better give him the 20 years in prison, Mr. Etheredge/Appellant may die in prison because of his heart but it's not your fault if he does but his, because he's the one that put himself [sic] behind bars by committing this crime not you. (Pet'r "Appeal of his Motion of Wrongful Conviction" at 5-6.)
Similarly, this argument, as presented, is not found in the record of the proceedings either. During the punishment phase, the state prosecutor did discuss the possibility of Etheredge dying in prison if given a lengthy prison sentence, however, the argument, even if improper, did not render the proceedings so unfair that there is a reasonable likelihood that Etheredge would have received a less severe punishment. (4Rep. R. at 22.) See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988). Finally, although it offends constitutional due process for a prosecutor to knowingly use or intentionally fail to correct testimony that he knows to be false, nothing in the record suggests that N.F.'s or R.W.'s testimony was false or that the state prosecutors knew their testimony to be false in any respect. See Napue v. Illinois, 360 U.S. 264, 271 (1959). Etheredge reasons that their testimony is necessarily fabricated because of the inconsistencies in the "details" of the events. However, discrepancies in witnesses' testimony merely establish a credibility question for the jury and do not suffice to establish that the testimony was false. See Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990); Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988).
5. INEFFECTIVE ASSISTANCE OF COUNSEL
Under his fifth ground, Etheredge contends he received ineffective assistance of counsel at trial and on appeal. (Pet'r "Appeal of his Motion of Wrongful Conviction" at 2-4, 6-7.) Etheredge was represented at trial by court-appointed counsel Deborah Nekhom and on appeal by court-appointed counsel Dean Swanda. According to Etheredge, Nekhom was ineffective by not allowing him to testify, by failing to call defense witnesses, and by "picking" only jurors favorable to the state. (Id. at 2-4.) He contends Swanda was ineffective by making misleading statements in appellant's brief that gave the impression that he did, in fact, expose himself to the girls. (Id. at 6-7.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST, amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland, 466 U.S. at 688. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002) (applying the Strickland standard to ineffective assistance claims against appellate counsel). A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Strickland, 466 U.S. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Strategic choices made by counsel after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690.
Where, as here, a petitioner's ineffective assistance claims have been reviewed on the merits under the Strickland standard and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of Strickland, or if the state courts' decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002). Under this standard, the state courts' application of Strickland must be shown to be not only erroneous, but objectively unreasonable. Yarborough v. Gentry, 124 S.Ct. 1, 4(2003).
Etheredge raised his ineffective assistance claims in his postconviction state writ applications, however the state courts rejected his claims. As to his complaints against trial counsel, the trial court held a hearing by affidavit and entered findings of fact refuting Etheredge's allegations of ineffective assistance in light of Nekhom's affidavit concerning her representation of Etheredge. (1State Habeas R. at 32-43, 60.) Thus, the trial court apparently accorded credibility to counsel's affidavit, and this credibility determination is entitled to a presumption of correctness. See Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997). A hearing was not held as to Etheredge's complaint against Swanda, and no express findings were made by the trial court regarding the claim. Nevertheless, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sain, 372 U.S. 293, 314 (1963); Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir. 1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973). As noted above, the presumption of correctness applies equally to explicit findings of fact as well as those findings of fact implicit in the state courts' mixed law and fact conclusions. See Valdez, 274 F.3d at 948 n. 11.
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir.), cert. denied, 454 U.S. 1109 (1981).
Etheredge makes no specific reference to the state court findings and otherwise makes no effort to rebut the presumptive correctness of the findings. 28 U.S.C. § 2254(e)(1). Nor does an independent review of the state court records reveal clear and convincing evidence that would rebut the presumption of correctness. Thus, assuming the state court's factual findings, both explicit and implicit, to be correct, it does not appear that the state courts applied Strickland in an objectively unreasonable manner or that the state courts' decision was based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceedings. See Bell, 535 U.S. at 698.
6. SUMMARY
In summary, Etheredge is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that Etheredge was not entitled to relief does not appear to be contrary to, or involve an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Etheredge's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until March 30, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 30, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.