Opinion
NO. 3:04-CV-1527-M.
December 15, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has been previously referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Armando Gonzalez ("Gonzalez" or "Petitioner") is an inmate confined at the Huntsville Unit of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") at Huntsville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Upon his plea of not guilty to the felony offense of driving while intoxicated and having waived trial by jury, Gonzalez was convicted by the trial court. Upon his plea of true to the prior conviction alleged in the enhancement paragraph of the indictment, the court found that he had been convicted of the prior offense and assessed punishment at twelve years confinement in the Texas Department of Criminal Justice. Petitioner filed a direct appeal and his conviction was affirmed in an unpublished opinion delivered by the Fifth Court of Appeals on June 13, 2003. Gonzalez v. State, No. 05-01-01673-CR, 2003 WL 21362717 (Tex.App.-Dallas June 13, 2003, no pet.).
As a result of his prior felony conviction, alleged for enhancement of punishment, the primary charge alleging a third degree felony was converted to a second degree felony.
Thereafter, Petitioner filed an application for habeas corpus relief pursuant to Tex. Code Crim. Proc. art. 11.07 on December 30, 2003 which was denied without written order on the findings of the trial court without a hearing on June 9, 2004. Ex Parte Gonzalez, No. 58,439-01.
Petitioner filed the instant habeas petition on July 12, 2004. Respondent filed an answer addressing the merits of his claim and submitted the state court records.
Findings and Conclusions:
Review of Gonzalez's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
In his first ground for relief, Gonzalez contends that the traffic stop which led to his arrest for driving while intoxicated was improper under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). Texas provides the right to a criminal case defendant to contest an allegedly illegal search and seizure, i.e. the opportunity for "full and fair litigation" of a claim that he was a victim of an illegal and unreasonable search and seizure. Therefore merits review of this ground is foreclosed. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3037 (1976); Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002).
In his second and third grounds for relief, Petitioner asserts that there was variance between the indictment and the evidence presented at trial. However, as amplified in his contemporaneously filed brief, the gravamen of this claim is that the prosecution presented perjured testimony and that the evidence was insufficient to support a guilty verdict. While it is clear that Petitioner's version of the facts as related in his testimony differed substantially from that related by the State's witness, he has presented nothing to raise a colorable claim that the prosecution knowingly presented false or perjured testimony. Gonzalez raised the issue of factual sufficiency in his state appellate proceedings, see Gonzalez v. State, and his claims in the state court proceedings were construed as being an attack on the factual sufficiency of the evidence. Ex Parte Gonzalez, No. 58,439-01 at 48-49. Factual sufficiency is a creation of Texas law. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996), see also, e.g., Jones v. Dretke, 2004 WL 1462199 (N.D. Tex. June 28, 2004), adopted by Jones v. Dretke, 2004 WL 1614931 (N.D. Tex. July 19, 2004).
Moreover, even if this court were to construe these claims as attacking the legal sufficiency of the evidence, see Jackson v. Virginia, 443 U.S. 307, 995 S.Ct. 2781 (1979), relief on these grounds is procedurally barred in light of the fact that Petitioner did not assert a claim of legal insufficiency in the context of his direct appeal and because claims of insufficiency of the evidence are not cognizable when first raised in a collateral attack on a conviction. See Ex Parte McWilliams, 634 S.W.2d 815, 818 (Tex.Crim.App. 1980); Renz v. Scott, 28 F.3d 431 (5th Cir. 1994). Therefore consideration of the merits of his sufficiency of evidence claim is procedurally barred.
In his fourth ground for relief, Gonzalez contends that he was denied effective assistance of counsel when his attorney persuaded him to waive his right to a jury trial, failed to obtain expert witnesses or toxicology reports, failed to call potential witnesses, failed to cross examine Officer Kostas or Johnny Torres, failed to take photographs of the condition of the road, failed to test the weather conditions on the day in question, failed to object to the prosecutor's use of allegedly perjured testimony by Officer Painter, and generally failed to test the prosecutor's case. Petitioner further contends that his appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial counsel on appeal.
An attorney's conduct is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id at 694, 104 S.Ct. at 2068.
The record reflects that Gonzalez signed a jury waiver. Ex Parte Gonzalez at 60. In light of the presumption of competence of counsel and the fact that a defendant's choice to proceed without a jury raises no inference of representation which falls below that required under the Sixth Amendment, Gonzalez's decision to waive trial by jury on his counsel's advice fails to present a cognizable claim of ineffective assistance of counsel.
In order to establish a basis for relief predicated on a failure to call witnesses a petitioner is required to show that their testimony would have been favorable and also that they would have testified at trial. See, e.g., Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981). As a general rule such "complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy, and because allegations of what a witness would have testified are largely speculative." United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983) cert. denied 467 U.S. 1251, 104 S.Ct. 3534 (1984), citing Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978).
Petitioner complains that his attorney failed to call an expert witness, presumably to interpret a toxicology report, and failed to call "potential witnesses." Gonzalez has failed to allege what a toxicology report would contain or how it might have changed the disposition of his case. He has also failed to state to what an expert witness might have testified or to prove that there was one available with material evidence at the time of his trial.
There is no evidence to suggest that there was a toxicology report. To the contrary, as noted by the Fifth Court of Appeals, Gonzalez refused to give a breath sample.
Petitioner does not allege any specific witnesses that his attorney failed to call, however, he complains that his attorney failed to cross examine Officer Kostas, the backup officer for Officer Painter, Petitioner's arresting officer, and John Torres, who testified on Gonzalez's behalf at his sentencing hearing. Petitioner has made no showing that either were available to testify on the day of his trial. Further, Gonzalez has made no showing as to any potential testimony by Officer Kostats. John Torres testified at his sentencing hearing about Petitioner's conduct earlier on the day in question, but was not present when the arrest occurred. (Reporter's Record v. 3 at 6-14). Therefore, his testimony would not have been probative as to Petitioner's state of intoxication at the time of the stop by the arresting officer.
Gonzales alleges that his attorney failed to investigate and submit evidence as to the state of the road and the weather of the day in question. However, he has provided no proof of either, therefore entirely failing to overcome the presumption of attorney competence. Gonzales further contends that his attorney was ineffective when he failed to object to Officer Painter's allegedly perjured testimony. However, there was no basis for such an objection. As noted above the credibility of conflicting testimony is reserved for the fact finder.
The record reflects that Petitioner's attorney cross examined Officer Painter, the sole witness called by the state, examined Gonzalez, and provided a closing argument asserting that the State had failed to prove intoxication beyond a reasonable doubt. ( See generally Reporter's Record v.2). Further, Petitioner's allegations that he was constructively denied the assistance of counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984) are conclusively refuted by the record. See, e.g., United States v. Griffin, 324 F.3d 330, 364 (5th Cir. 2003) ("A constructive denial of counsel occurs in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all." citing Gochicoa v. Johnson, 238 F.3d 278, 284 (5th Cir. 2000)).
Since Petitioner has failed to show that his trial attorney provided ineffective assistance, his claim that his appellate attorney was ineffective because of failure to complain of his trial attorney equally lacks merit.
RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.