Opinion
No. 3:01-CV-2120-P
February 25, 2004
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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
Petitioner challenges his conviction for attempted murder. State v. Greer, No. F92-05091-SI (2nd Dist. Court Dallas County, Tex. April 24, 1994). The court assessed punishment at life in prison. Id. Petitioner appealed, and the appellate court affirmed his conviction. Greer v. State, No. 05-94-01070-CR (Tex.App.-Dallas, May 24, 1999, pet. ref d). Petitioner filed a petition for discretionary review which was refused by the Texas Court of Criminal Appeals on December 1, 1999. Greer v. State, PDR No. 1832-99. Petitioner filed a state application for writ of habeas corpus which was denied without written order, based upon the findings of the trial court without a hearing. Ex parte Greer, No. 50, 139 (Tex.Crim.App. Sept. 5, 2001). Petitioner filed his petition pursuant to 28 U.S.C. § 2254 in this court on October 22, 2001.
Exhaustion of State Court Remedies
Petitioner has failed to exhaust his state court remedies with respect to his claims of legal sufficiency of the evidence. Accordingly, Claims One, Three, and Five have been procedurally defaulted.
Issues
Petitioner raises the following claims:
1. The evidence is legally insufficient to support the trial court's negative finding on self-defense;
2. The evidence is factually insufficient to support the trial court's negative finding on self-defense;
3. The evidence is legally insufficient to prove that Petitioner acted with the specific intent to kill Cornelius Darden;
4. The evidence is factually insufficient to prove that Petitioner acted with the specific intent to kill Cornelius Darden;
5. The evidence is legally insufficient to support the trial court's implicit finding against Petitioner on the affirmative defense of renunciation;
6. The evidence is factually insufficient to support the trial court's implicit finding against Petitioner on the defense of renunciation;
7. Trial counsel rendered ineffective assistance by failing to call Jerry Hartford to testify;
8. Trial counsel was ineffective by failing to impeach Guy Leonard;
9. Trial counsel was ineffective when he induced his client to waive his constitutional right to a jury trial and proceed to trial before the court; and
10. Trial counsel was ineffective when counsel subpoenaed Guy Leonard to trial without conducting an independent investigation as to the testimony of the witness.
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Petitioner's state habeas application was denied on the merits.
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus 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 from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A claim of ineffective assistance of counsel is a mixed question of law and fact that courts review under the "contrary to" and "unreasonable application" prongs of 28 U.S.C. § 2254(d). Valdez v. Cockrell, 274 F.3d 941, 946 (2001).
Statement of Facts
The Fifth Court of Appeals of Texas summarized the facts surrounding the offense as follows:
On October 24, 1992, the complainant, Cornelius Darden, was riding in a red Mustang convertible with his friends, Cedric Jones and Julius Reese. Reese was driving. They saw a friend of theirs, Guy Leonard, in another car. Reese followed Leonard's car into a car wash on Martin Luther King Boulevard. As they pulled into the car wash, [Petitioner] was exiting. According to Darden, as the cars passed, he and [Petitioner] "exchanged looks." Darden, Reese, and Jones got out of the Mustang and began talking to Leonard. [Petitioner] joined the group and exchanged words with Darden. [Petitioner] told Leonard he thought Darden was going to "jack" him. Darden responded that he did not have a problem with [Petitioner]. Leonard encouraged [Petitioner] to leave the car wash. [Petitioner] did so.
However, [Petitioner] soon returned to the car wash driving a different car and approached Darden, Reese, and Jones, who were still talking with Leonard. [Petitioner] pointed a. 380 semiautomatic pistol at Darden and said, "You all want to play with me?" [Petitioner] chased Darden around Leonard's car and fired four shots at him. The fourth shot struck Darden's back right shoulder. After Darden fell to the ground, [Petitioner] put the gun to Darden's head and said, "I ought to kill you." Leonard told [Petitioner] he did not need to shoot Darden again and led [Petitioner] away from Darden. [Petitioner] got into a friend's car, and then left the car wash as the police arrived. One of the witnesses at the scene identified [Petitioner] as the shooter. The police followed [Petitioner] and arrested him shortly thereafter. Darden was taken to Parkland Hospital. As a result of the shooting, Darden is permanently paralyzed from the waist down.
Darden testified he did not make any threatening gestures or motions toward [Petitioner] before [Petitioner] shot him. Guy Leonard confirms Darden's account of the shooting. Leonard also stated that he did not see Darden with a weapon although someone in Darden's group told him they had a Mossberg and an Uzi.
[Petitioner] testified in his own defense. He stated that, as he was pulling out of the car wash, a convertible Mustang pulled very close to his car. Thinking he might know someone in the Mustang, [Petitioner] began walking toward it. As he approached the Mustang, [Petitioner] noticed two men trying to open the trunk. Meanwhile, Darden was walking toward [Petitioner] while reaching his hand under his shirt. [Petitioner] testified that he had never met Darden before. Leonard intervened and told [Petitioner] to leave the car wash.
[Petitioner] took his wife home; however, because he was concerned for his family's safety, [Petitioner] returned to the car wash to "see what was going on." Darden and his friends were still talking with Leonard. When [Petitioner] joined the group, Darden started cursing him. According to [Petitioner], Darden again reached under his shirt, and [Petitioner] saw the butt of a gun. [Petitioner] pulled his gun and shot twice at the ground. Darden ran around Leonard's car and reached down. Thinking Darden was reaching for his gun, [Petitioner] shot him. [Petitioner] testified that, while Darden was laying on the ground, he put the gun to Darden's head and said, "I could kill you, but you're not even worth it, and I don't know really why you bother with me and my family. [Petitioner] stated that he did not intend to kill Darden and shot him only because he believed Darden was reaching for a weapon.Ex parte Greer, at 31-33.
State Procedural Default
Federal courts may not review a state court decision that rests on an adequate and independent state procedural grounds, unless the habeas petitioner shows cause for the default and prejudice attributable to the default or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. Id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).Respondent argues that Petitioner's legally insufficient evidence claims are procedurally barred because Petitioner failed to present those claims to the Texas Court of Criminal Appeals either in a petition for discretionary review or an application for writ of habeas corpus. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claim procedurally barred. Id.
In his state habeas corpus application, Petitioner raised the ineffective assistance of counsel claims he presents here as Claims Eight, Nine, and Ten. In his petition for discretionary review he raised claims of factual insufficiency of the evidence with respect to the specific intent to kill, failure to prove self-defense, and failure to prove renunciation (Claims Two, Four, and Six). He also claimed that the Court of Appeals erred by finding against him on his claim that counsel should have called Hartford as a witness (Claim Seven).
Petitioner did not contest Respondent's position that he procedurally defaulted his legal sufficiency of the evidence claims. The state record reflects that Petitioner failed to raise the legal sufficiency of the evidence in his state habeas application or in his petition for discretionary review. If this Court required him to return to state court to exhaust these claims, they would be subject to dismissal under the Texas abuse-of-the-writ doctrine. TEX. CODE CRIM. PRO. ANN. art. 11.07, § 4. A petitioner may not bring a second state habeas petition without good cause if he urges grounds that could have been, but were not, raised in his first habeas petition. Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Texas' abuse-of-the-writ doctrine is an adequate and independent state procedural ground to bar federal habeas corpus review. It has been strictly and regularly applied since 1994. Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). Federal courts ordinarily will not review questions of federal law when such a state procedural bar exists. Id.
To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider his claims will result in a fundamental miscarriage of justice. Id. at 524. Petitioner has shown no cause for his failure to present his legal sufficiency of the evidence claims to the Texas Court of Criminal Appeals. Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. This exception is confined to cases where the petitioner shows, as a factual matter, that he did not commit the crime of conviction. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). To establish the required probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has presented no new, reliable evidence showing that it was more likely than not that no reasonable juror would have convicted him. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas corpus consideration of Claims One, Three, and Five.
Factual Sufficiency of the Evidence
Petitioner challenges the factual sufficiency of the evidence in Claims Two, Four, and Six. On habeas corpus review, a federal court does not sit as a super state supreme court to review errors of state law. See Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir. 1995); see also Cook v. Morrill, 783 F.2d 593, 596 (5th Cir. 1986). Moreover, the federal courts will not review a state court's interpretation of its own law in a federal habeas corpus proceeding. See Moreno v. Estell, 717 F.2d 171, 179 (5th Cir. 1984).
With respect to sufficiency of the evidence, a federal court will review only properly presented legal sufficiency of the evidence claims. Jackson v. Virginia, 443 U.S. 307 (1979). A federal court will consider:
[W]hether, 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 323. Texas courts, on the other hand, will review the factual sufficiency of the evidence, applying a higher standard of review. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Challenges to the factual sufficiency of the evidence are not cognizable under federal habeas review.
The Texas courts found the evidence factually sufficient under the Clewis standard. Ex parte Greer at 39. This Court may not review a state's interpretation of its own law. Rather, this Court is bound by the state courts' determination concerning the factual sufficiency of the evidence. As a result, Claims Two, Four, and Six are not cognizable here.
Petitioner's Ineffective Assistance of Counsel Claims
Petitioner's ineffective assistance of counsel claims set out in Claims Nine and Ten were adjudicated on the merits in state court. See Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); see also Murphy v. Johnson, 205 F.3d 809, 812-13 (5th Cir. 2000). Accordingly, the state court's findings are entitled to a presumption of correctness which must be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Petitioner has failed to rebut this presumption.
The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art. VI. The merits of the ineffective assistance of counsel claims that are now before the Court are squarely governed by the United States Supreme Court's holding in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Petitioner is required to prove that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely that it deprived Petitioner of a fair trial. Strickland, 466 U.S. at 687. In Strickland, the United States Supreme Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. A petitioner must prove both deficient performance and prejudice. To prove such prejudice, a petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Strickland, 466 U.S. at 694.
Discussion
1. Counsel's Failure to Call Jerry Hartford as a WitnessComplaints of uncalled witnesses are not favored because the presentation of testimonial evidence is a matter of trial strategy and allegations of a witness's testimony are largely speculative. See United States v. Doran, 564 F.2d 1176, 1177-78 (5th Cir. 1977). Petitioner alleges that trial counsel provided ineffective assistance by failing to call as a witness, Jerry Hartford, to testify in support of Petitioner's claim of self-defense. In support of Petitioner's motion for new trial, he attached an affidavit from Hartford and Hartford testified at a hearing on the motion for new trial. Hartford had talked to Leonard at the car wash. According to Hartford, Leonard stated Darden was armed and had a reputation for getting into fights and pulling guns on people. Much of what Petitioner claimed Hartford knew was hearsay or irrelevant and would have been inadmissible. The state appellate court assumed, without deciding, that Petitioner's attorney's performance was deficient for failing to call Hartford. It nevertheless concluded that Petitioner failed to show prejudice. The Court agrees that Petitioner has not shown a reasonable probability exists that a different outcome would have resulted if counsel had called Hartford as a witness. The state court decision in this regard is not clearly contrary to Strickland or an unreasonable application of the facts.
2. Counsel's Failure to Impeach Leonard
Petitioner claims counsel was ineffective for failing to impeach Leonard with his statement to Hartford and Petitioner's wife that Darden was armed. The record does not reveal counsel's reasons for not examining Leonard about this statement. However, decisions regarding witness examination are matters of trial strategy. Counsel's affidavit, which the trial court found to be credible, mentions that (1) Petitioner wanted him to call Leonard; (2) he had attempted to talk to Leonard, but Leonard would not engage in meaningful discussion with him, and (3) Leonard's testimony was different from what Petitioner had led him to expect. Ex parte Greer, at 28. It is basic trial strategy for counsel not to question a witness when he does not know what the witness will say. Petitioner has not shown that counsel's performance was deficient for failing to impeach Leonard. The same is true with respect to Counsel's failure to question Leonard regarding any alleged pretrial threats from Darden and his friends and his alleged role as a police informant. Counsel's failure to question Leonard about these matters was sound trial strategy. Petitioner's ineffective assistance of counsel claims with respect to counsel's questioning of Leonard should be denied.
3. Counsel's Advice to Waive the Right to a Jury Trial
Finally, Petitioner claims that defense counsel induced him to waive his right to a jury trial. Defense counsel testified by affidavit that Petitioner freely chose to waive a jury trial after a thorough discussion of the advantages and disadvantages of both a jury trial and a bench trial. On habeas review, the trial court found defense counsel was trustworthy and found the statements in the affidavit to be true and correct. The Texas Court of Criminal Appeals adopted the trial court's findings. Ex parte Greer at 27-29. Petitioner has failed to rebut the presumption of correctness of these findings. Further, he has failed to rebut the presumption of correctness regarding all the state court findings with respect to his ineffective assistance of counsel claims.
The Court has thoroughly reviewed the record and concludes that state court's denial of habeas corpus relief did not result in a decision that was contrary to, or involve an unreasonable application of, the United States Supreme Court's clearly established federal law. Moreover, it did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, Petitioner is not entitled to federal habeas corpus relief. See 28 U.S.C. § 2254(d).
RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus be DENIED.
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 the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten 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. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Greer v. Arn, 474 U.S. 140, 150 (1985). Additionally, any 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 Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).