Opinion
Civil Action NO. 4:02-CV-208-Y
October 10, 2002
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 under the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court forthe 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 David Christopher Graham, TDCJ-ID #837388, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Ellis Unit in Huntsville, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In August 1995 during their senior year of high school, Diane Zamora and David Graham began dating. (13 Rep. R. at 34.) They quickly developed a serious relationship and became engaged. (26 Rep. R. at Ex. 21 p. 24.) In early December 1995, Graham told Zamora that he had had sex with Adrianne Jones, a 15-year-old classmate, on November 4 after driving Jones home from a track meet. (27 Rep. R. at Ex. 89 pp. 3-4.) Zamora demanded that Graham kill Jones to prove his love for her. ( Id.; 13 Rep. R. at 39; 14 Rep. R.at 7.)
On December 3, Graham called Jones and asked her to meet him. (12 Rep. R. at 79-82; 27 Rep. R. at Ex. 89 p. 3.) On December 4, Graham picked up Jones at around 12:30 a.m. (27 Rep. R. at Ex. 89 p. 4.) Zamora was hiding in the trunk of the car. ( Id.) When Graham got to a secluded location and stopped the car, Zamora got out of the trunk and climbed into the back seat. (13 Rep. R. at 40.) Jones, Graham, and Zamora began to scuffle, and after Zamora tried to hit Jones with a weight, Graham hit Jones in the head with the butt of a gun. (27 Rep. R. at Ex. 89 p. 4; 13 Rep. R. at 41.) Somehow, Jones escaped from the car and tried to run away, but she collapsed in a field from her head wound. (27 Rep. R. at Ex. 89 p. 4; 13 Rep. R. at 41-42.) Graham shot and killed Jones. (27 Rep. R. at Ex. 89 p. 4.) Zamora and Graham then went to a friend's house at around 2:00 a.m. so Graham could clean up and get a change of clothes. (17 Rep. R. at 17-22.) Hours later, Jones's body was found in a field. (12 Rep. R. at 136-37.) A few weeks after the murder, Zamora told her best friend, Kristina Mason, that Graham had killed Jones to prove his love for her and divulged the details of their plan to kill Jones and the actual murder. (13 Rep. R. at 34, 39-42.) Because Mason believed Zamora was lying, as she had been known to do in the past to impress her friends, Mason told no one about Zamora's statements, and the murder remained unsolved. ( Id. at 42-43, 76.)
Graham and Zamora graduated from high school in May 1996. (26 Rep. R. at Ex. 21 p. 19.) Graham enrolled in the United States Air Force Academy, and Zamora began her studies at the United States Naval Academy. ( Id. at Ex. 21 p. 150.) In July 1996, Zamora told her roommate, Jennifer McKearny, that she and Graham had murdered Jones. (14 Rep. R. at 6-9.) McKearny promptly told officials at the Naval Academy about Zamora's claims, who contacted the police. ( Id. at 8-9.) The police went to the Air Force Academy to interview Graham. (13 Rep. R. at 157-58.) Although Graham denied any involvement, he agreed to take a polygraph exam. ( Id.) After failing the polygraph, Graham admitted that he was involved in Jones's murder and that Zamora's statements were true. (4 Rep. R. at 124-31; 16 Rep. R. at 29-30.) He then typed up a formal statement, which conformed to Zamora's account of the murder. (16 Rep. R. at 52; 26 Rep. R. at Ex. 89.) After he gave this statement, he told police where they could find the gun that he had used to kill Jones. (13 Rep. R. at 161-62.) As a result of this information, the police found the murder weapon. ( Id. at 93-94, 146-51.)
Graham was indicted for capital murder. (1 Clerk R. at 3.) On July 24 1998, a jury found him guilty of capital murder, and the trial court sentenced him to life confinement. (2 Clerk R. at 291.) The Second District Court of Appeals affirmed the judgment, and the Texas Court of Criminal Appeals refused Graham's petition for discretionary review. Graham v. State, 3 S.W.3d 272 (Tex.App.-Fort Worth 1999, pet. ref'd). Graham filed one state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Graham, No. 51, 498-01 (Tex.Crim.App. Mar. 13, 2002) (not designated for publication). Graham filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on March 13, 2002.
Zamora was also convicted of the capital murder of Jones and sentenced to life confinement. — Zamora v. State, 998 S.W.2d 290, 291 (Tex.App.-Fort Worth 1999, pet. ref d).
D. ISSUES
Graham raises four issues:
1. His confrontation rights were violated.
2. The evidence was legally insufficient.
3. Trial counsel was constitutionally ineffective.
4. Appellate counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell believes Graham has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. Discussion 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Confrontation Rights
In three separate grounds, Graham asserts that his confrontation rights were violated. The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The guarantees of a face-to-face confrontation with witnesses at trial and of the right to cross-examine those witnesses serve to protect the integrity of the fact finding process in criminal trials. Maryland v. Craig, 497 U.S. 836, 850 (1990).
a. Diane Zamora
At the time of Graham's trial, Zamora had been convicted of capital murder, but her appeal was still pending in the state court of appeals. (17 Rep. R. at 2.) In exchange for her testimony at Graham's trial, the State offered her use immunity. (2 Clerk R. at 229-30.) However, because her case was still pending on direct appeal, Zamora asserted her Fifth Amendment privilege when Graham attempted to call her as a witness. (17 Rep. R. at 6.) The trial court held that Zamora's Fifth Amendment privilege survived the State's grant of use immunity and that she could not be compelled to testify. ( Id. at 3-4.) Graham argues that the trial court violated his confrontation rights by allowing Zamora to invoke the Fifth Amendment and avoid testifying at Graham's trial even though she was granted use immunity. (Pet'r Mem. in Support at 17.)
(1) procedural default
Graham did not raise this issue on appeal, but did raise it in his state habeas corpus application by arguing that his confrontation rights under the United States and Texas Constitutions were violated when Zamora was not compelled to testify. (State Habeas R. at 47.) The trial court, in denying relief on this claim, stated that the issue was not raised on appeal as it should have been and that "there was no credible evidence presented to the Court that she would have testified favorably to the defense." (State Habeas R. at 260.) The Court of Criminal Appeals denied the application on the trial court's findings. Cockrell now argues that Graham's claim is procedurally defaulted based on the Court of Criminal Appeals' express and unambiguous finding that Graham should have raised the claim on direct appeal. (Resp't Answer at 22.)
Federal review of a claim is procedurally barred if the last state court to consider the claim clearly based its denial of relief on procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Coleman v. Thompson, 501 U.S. 722, 729 (1991). Although the state habeas trial court alternatively held that the claim had no merit, this does not detract from the court's primary holding: that Graham's failure to raise the claim on direct appeal was a procedural default. Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.), cert. denied, 525 U.S. 1049 (1998). Thus, the alternative holdings do not defeat a procedural bar. Soria v. Johnson, 207 F.3d 232, 249 (5th Cir.), cert. denied, 530 U.S. 1286 (2000).
What does defeat application of a procedural bar in this case, however, is the reasoning behind the state courts' procedural-default holdings. In holding that Graham had defaulted this claim, the state habeas court, and by implication the Court of Criminal Appeals, stated that the claim could not be raised for the first time in a post-conviction writ and should have been initially raised on appeal, relying on In re Sanchez and In re Banks. (State Habeas R. at 260.) Both cases hold that errors based on statutory grounds, such as the improper exclusion of a veniremember under a state statute and a violation of the statutory Interstate Agreement on Detainers, are not cognizable in a post-conviction writ. Sanchez, 918 S.W.2d at 527; Banks, 769 S.W.2d at 540. These cases go on to explain that errors raising denials of constitutional rights are properly raised, even for the first time, in a post-conviction writ. Sanchez, 918 S.W.2d at 527; Banks, 769 S.W.2d at 540. Graham's claim was clearly based on the United States and Texas Constitutions and not on any state statutory provision. It would be erroneous to honor a presumption of procedural default where no such default existed. Sinclair v. Wainwright, 814 F.2d 1516 1522 (11th Cir. 1987); Pedrero v. Wainwright, 590 F.2d 1383, 1390 (5th Cir.), cert. denied, 444 U.S. 943 (1979). Indeed, for the presumption of procedural default to apply, the procedural default must be clearly and correctly applied by the state courts. Sinclair, 814 F.2d at 1522. Thus, it would be improper to apply a procedural bar in this case.
918 S.W.2d 526, 527 (Tex.Crim.App. 1996).
769 S.W.2d 539, 540 (Tex.Crim.App. 1989) (op. on reh'g).
(2) testimonial immunity and the Fifth Amendment
The issue this court is faced with is whether Zamora should have been compelled to testify because she had been granted immunity. There appear to be three types of testimonial immunity: (1) transactional, (2) use, and (3) use-and-derivative-use. Transactional immunity bars subsequent prosecution for any offense related to the testimony compelled. Kastigar v. United States, 406 U.S. 441, 453 (1972); 2 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES § 205 (1984); John P. Venzke, Comment, Texas Immunity Law: A Survey and a Proposal, 10 Hous. L. REV. 1120, 1120 (1973). In other words, it provides true immunity from prosecution. Use immunity bars use of the witness's compelled information or statements directly against the witness in any criminal proceeding. United States v. Castaneda, 162 F.3d 832, 834 n. 1 (5th Cir. 1998); accord United States v. Plummer, 941 F.2d 799, 803 (9th Cir. 1991). Use-and-derivative-use immunity bars direct use of the witness's statements against the witness in any criminal proceeding as well as use of any investigative leads derived from the witness's statements. Kastigar, 406 U.S. at 453; Castaneda, 162 F.3d at 834 n. 1; Venzke, supra at 1120-21. The Supreme Court has held that use-and-derivative-use immunity is coextensive with the scope of the privilege against self-incrimination and, thus, is sufficient to compel testimony over a claim of the privilege. Kastigar, 406 U.S. at 453, 458; see also Ex parte Shorthouse, 640 S.W.2d 924, 928 (Tex.Crim.App. 1982). Use immunity alone cannot compel testimony when the Fifth Amendment is asserted. United States v. Goodwin, 470 F.2d 893, 904 (5th Cir. 1972), cert. denied, 411 U.S. 969 (1973).
In this case, Zamora's immunity agreement is entitled "Use Testimony Immunity Agreement." (2 Clerk R. at 229.) It specifically provided that the State "will be forever barred from using any testimony that [Zamora] offers during [Graham's] trial and that the State will not and cannot in any way use this testimony against [Zamora] in any future proceeding or trial." [Emphasis added.] ( Id. at 229-30.) Graham argues that this agreement granted Zamora use-and-derivative-use immunity and not merely use immunity; thus, Zamora's testimony should have been compelled even though she refused to testify under the Fifth Amendment. (Pet'r Mem. in Support at 21.)
"The common understanding of "use immunity' in the criminal justice world is that it encompasses derivative use immunity." Plummer, 941 F.2d at 805; see also United States v. Kilroy, 27 F.3d 679, 685 (D.C. Cir. 1994). Indeed, federal courts, in interpreting non-statutory immunity agreements, have held that immunity agreements that do not expressly reserve the right to use any evidence derived from a witness's testimony grant use-and-derivative-use immunity. E.g., United States v. Chiu, 109 F.3d 624, 626 (9th Cir. 1997); United States v. Lyons, 670 F.2d 77, 80 n. 4 (7th Cir.), cert. denied, 457 U.S. 1136 (1982). It is common for references to use immunity to also include derivative use immunity. See e.g., United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990); United States v. Harvey, 869 F.2d 1439, 1444 (11th Cir. 1989); BLACK'S LAW DICTIONARY 754 (7th ed. 1999). In this case, the State did not expressly reserve the right to use any evidence derived from Zamora's testimony. Its agreement to not use her testimony "in any way" leads this court to conclude that the State intended to grant her use-and-derivative-use immunity. See Plummer, 941 F.2d at 803-05; United States v. Brown, 801 F.2d 352, 353, 355 (8th Cir. 1986); cf. State v. Boyd, 38 S.W.3d 155, 156-57 (Tex.Crim.App. 2001) (holding statutory immunity, which granted immunity "from civil or criminal liability that might otherwise be incurred or imposed as a result of the report, " entitled witness to use-and — derivative-use immunity). Thus, Zamora's immunity agreement was coextensive with her Fifth Amendment privilege and was sufficient to compel her testimony. Kastigar, 406 u.s. at 453, 458.
Because the trial court erred in failing to compel Zamora's testimony, this court agrees with Cockrell and Graham that the next step is to determine what harm, if any, flowed from the error. (Pet'r Mem. in Supp. at 23; Resp't Answer at 25.) The well-settled standard is whether the error had a "substantial or injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). of course, some constitutional errors may be found to be so inconsequential that they may be deemed harmless and not subject to an automatic reversal. Chapman v. California, 386 U.S. 18, 22 (1967). As found by the state habeas court, there was "no credible evidence. . . that [Zamora] would have testified favorably to the defense." (State Habeas R. at 237.) Indeed, her testimony at her own trial painted Graham in a very unfavorable light and as the sole instigator and actor in Jones's murder. (26 Rep. R. at Ex. 21 pp. 29-30, 36-39, 48-57, 68-106, 110-18, 122-27, 135-43.) Mason's and McKearny's testimony revealed that Graham was, at most, an equal partner in the murder. (13 Rep. R. at 38-42; 14 Rep. R. at 6-7.) Further, Graham's confession was strong evidence of his guilt. See Cruz v. New York, 481 U.S. 186, 193-94 (1987) (holding defendant's confession may be considered in harmless-error analysis of Confrontation Clause violation). Thus, in the context of the entire trial and the fact that Zamora's testimony would probably have been more harmful to Graham than Mason's and McKearny's testimony, this error was harmless.
b. Kristina Mason
At Graham's trial, Mason testified about her conversation with Zamora, including Zamora's assertions that Graham had killed Jones to prove his love for Zamora at Zamora's urging. (13 Rep. R. at 39, 42.) The trial court allowed Mason to testify as to Zamora's statements because they were declarations against Zamora's penal interest. (9 Rep. R. at 2-4.) At trial, on appeal, and in the instant habeas action, Graham argues that his confrontation rights were violated by the erroneous admission of this hearsay evidence. (Pet'r Mem. in Support at 31.)
Even assuming Mason's testimony was wrongfully admitted under Texas evidence law, Graham's Sixth Amendment claim is ineffectual. E.g., Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994) (assuming improper admission of hearsay evidence in Confrontation Clause analysis), cert. denied, 513 U.S. 1163 (1995); Johnson v. Blackburn, 778 F.2d 1044, 1051 (5th Cir. 1985) (same). Although the Confrontation Clause and the hearsay rule are related, the Confrontation Clause does not inevitably preclude the admission of any hearsay testimony. Dutton v. Evans, 400 U.S. 74, 80 (1970); Cupit, 28 F.3d at 536. To determine whether the wrongful admission of hearsay evidence violates the Confrontation Clause and was material, this court must "assess the admission of the evidence in light of a host of considerations." Cupit, 28 F.3d at 537. Specifically, five factors must be considered:
1. was the hearsay evidence "crucial" or "devastating, "
2. did prosecutors misuse a confession or otherwise engage in misconduct,
3. was a joint trial or the wholesale denial of cross-examination involved,
4. was the most important prosecution witness, as well as other prosecution witnesses, available for cross-examination, and
5. the degree to which the hearsay evidence is supported by any indicia of reliability.Dutton, 400 U.S. at 87; Johnson, 778 F.2d at 1051. The first and fifth factors are the most important in this analysis. Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997), cert. denied, 522 U.S. 1121 (1998). Factors two and three do not apply to this case. The fourth factor weighs against Graham's position: the most important witness for the State was Graham himself, in the form of his statements to the authorities admitting his role in Jones's murder. Cupit, 28 F.3d at 537. Regarding the fifth factor, the intermediate state appellate court held that Zamora's statements had sufficient indicia of reliability to warrant their admission. Graham, 3 S.W.3d at 275-76. Indeed, based on the fact that Zamora told Mason a detailed account of Jones's murder before she was a suspect or in custody, the statements have inherent guarantees of trustworthiness. United States v. Flores, 985 F.2d 770, 780 (5th Cir. 1993). Based on these considerations, the hearsay evidence introduced through Mason was not crucial or devastating; thus, the Confrontation Clause was not violated. Gochicoa, 118 F.3d at 447; Cupit, 28 F.3d at 537; Johnson, 778 F.2d at 1051. Further, because Zamora's statements to Mason were cumulative of Graham's own confession to the police, he cannot show harm in their admission even if his confrontation rights were violated. Gochicoa, 118 F.3d at 447 n. 5; Cupit, 28 F.3d at 537-39.
c. Jennifer McKearny
Graham likewise claims his Sixth Amendment rights to confrontation were violated when Zamora's statements were admitted through McKearny. (Pet'r Mem. in Support at 45.) On appeal, the state intermediate appellate court held, in addition to its holding that McKearny's testimony did not violate the Sixth Amendment, that any error was not preserved because counsel failed to object to McKearny's testimony on these grounds. Graham, 3 S.W.3d at 275-76. On state habeas review, the Texas Court of Criminal Appeals held that Graham could not relitigate his Sixth Amendment issues regarding McKearny's and Mason's testimony through a habeas corpus application. (State Habeas R. at 238.)
Cockrell argues that this claim is barred because the court of appeals stated that error had not been preserved regarding McKearny's testimony. (Resp't Answer at 35-36.) As discussed above in section 1.F.2.a.(1), the court of appeals' alternative holding on the merits does not preclude application of the procedural baron habeas review. Indeed, the Court of Criminal Appeals expressly relied on a procedural bar — that Graham could not relitigate his Sixth Amendment claim on state habeas review — in denying this claim. Thus, this court is procedurally barred from addressing the merits of this claim because the state courts refused to do so on procedural grounds. See generally Steward v. Cain, 259 F.3d 374, 377-78 (5th Cir. 2001). Even if the claim were not procedurally barred, Graham would not be entitled to habeas corpus relief. As pointed out in section 1.F.2.b., the admission of Zamora's hearsay statements did not violate the Confrontation Clause and, even if violative, was harmless.
Because the Court of Criminal Appeals relied on a different procedural ground to deny relief than that relied upon by the state intermediate court of appeals, it is feasible that the procedural bar might not apply.
3. Sufficiency of the Evidence
Graham argues that the evidence is legally insufficient to support his capital-murder conviction because there was no evidence that he committed the murder either while in the course of kidnaping or in the course of obstruction or retaliation. (Pet'r Mem. in Support at 61, 69.) Graham raised these challenges solely in his state habeas corpus application. The state trial court found that "[a] challenge to the sufficiency of the evidence is not cognizable by way of post[-]conviction collateral attack." (State Habeas R. at 239.) The Texas Court of Criminal Appeals denied Graham habeas corpus relief on these claims based on the state trial court's finding that he had procedurally defaulted the claims. Graham offers no argument to satisfy the cause-and-prejudice test to overcome the procedural default. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman, 501 U.S. at 750; Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Thus, this court is barred from addressing the merits of the sufficiency claims.
4. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90.
Graham's complaints about counsel were reviewed and rejected during state collateral-review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d). As discussed below, Graham has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
a. Trial counsel
Graham asserts that trial counsel was constitutionally ineffective because he did not object to the State's reference to his failed polygraph test and failed to object to McKearny's testimony. (Pet'r Mem. in Support at 8, 57.)
Before trial, the State filed a motion in limine requesting that, without the trial court's prior permission, defense counsel not mention or make any inference about "any polygraph, polygraph examinations, polygraph examin[e]rs[,] or polygraph results." (1 Clerk R. at 88.) The trial court granted the motion, but stated that defense counsel could raise the issue during cross-examination. (9 Rep. R. at 39.) During opening argument, the prosecutor told the jury that "[d]uring the next five or six hours [of police questioning], David Graham is given five polygraph exams." (12 Rep. R. at 14.) Counsel objected, and the trial court instructed the jury that they were not to give any evidentiary weight to any mention of a polygraph. ( Id. at 16.) The trial court denied defense counsel's motion for a mistrial. ( Id. at 16.) The prosecutor then argued that Graham acknowledged his role in Jones's murder after being "confronted with" Zamora's admissions to McKearny, "the polygraph results," and "John Green's. . . statement" that Graham had cleaned up at Green's house after the murder. ( Id. at 17.) Defense counsel did not object to the second polygraph reference. On appeal, the state intermediate court of appeals held that the trial court's instruction to disregard the reference cured any error flowing from the first polygraph reference and that counsel had failed to preserve any error by failing to object to the second polygraph reference. Graham, 3 S.W.3d at 285. The Court of Criminal Appeals held that counsel's failure to object was a result of trial strategy and that, even if deficient, the lack of an objection did not deprive Graham of a fair trial. (State Habeas R. at 252-53.) Graham argues that if counsel had objected, he would have been granted a mistrial or a reversal on appeal based on the prejudicial effect of the references. (Pet'r Mem. in Support at 13-16.)
Because of the highly deferential prism through which this court views counsel's performance, Graham must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Pratt v. Cain, 142 F.3d 226, 231 (5th Cir. 1998). "A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). As found by the state habeas court and adopted by the Court of Criminal Appeals, counsel's failure to reurge his objection could have been the result of a sound and reasoned trial strategy:
The decision to make, or not make, an objection depends on any number of considerations, including but not limited to the Texas Rules of Evidence, whether making an objection will only serve to further direct the jury's attention to the offending testimony, whether repetitious objections will unnecessarily aggravate the jury, whether repetitious objections may aggravate an already hostile judge, whether the offending statement is likely to go over the jurors' heads, whether the offending statement was actually harmful to the client, whether the Court has already given the jury a limiting instruction on the issue, and whether the testimony was of sufficient significance to merit an objection. Not every evidentiary transgression by opposing counsel merits an objection. . . .
A trial lawyer must strike a reasonable balance between preserving issues for appellate review and trying his case to a jury of 12 citizens. . . . (State Habeas R. at 252-53.)
This court will not second-guess counsel's trial strategy. Thus, counsel was not deficient. See Drew v. Collins, 964 F.2d 411, 423 (5th Cir. 1992) (holding failure to object to State's closing jury argument is reasoned trial strategy), cert. denied, 509 U.S. 925 (1993).
Graham's contention that counsel was ineffective for failing to object to McKearny's testimony is likewise unavailing. As discussed above in section 1.F.2., admitting Zamora's statement through Mason and McKearny did not violate the Sixth Amendment. Thus, any objection to McKearny's testimony would have been as futile as the objection to Mason's testimony was. Counsel was not deficient. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
b. Appellate counsel
Graham also argues that appellate counsel was constitutionally ineffective because he failed to argue on appeal that the trial court erred in not compelling Zamora to testify. (Pet'r Mem. in Support at 27.) Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish deficient performance, Graham must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Graham must demonstrate that, but for counsel's error, he would have prevailed on appeal. id.
As explained above in section 1.F.2.a.(2), the trial court's error in failing to compel Zamora's testimony was harmless. Thus, counsel was not deficient for failing to raise an issue on appeal that would have ultimately resulted in no relief. Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992).
5. Summary
Graham is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Graham was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION Graham'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 OBJECTUnder 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until October 31, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until October 31, 2002 to serve and file, not merely place in the mail, 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, the 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, is returned to the docket of the United States District Judge.