Opinion
CIVIL ACTION NO. 5:01-CV-277-C
May 8, 2002
ORDER
Petitioner, Allen J. Hastings (Hastings), filed a Petition for a Writ of Habeas Corpus by a Person in State Custody and Respondent filed an Answer, together with relevant state court records. Hastings filed a response.
Respondent has lawful custody of Hastings pursuant to a judgment and sentence of the 137th District Court of Lubbock County, Texas. Hastings was indicted for the felony offense of delivery of a controlled substance within 1000 feet of a school, a drug free zone, with prior felony convictions for possession of a controlled substance and unauthorized use of a motor vehicle alleged in the indictment for enhancement of punishment. Hastings entered a plea of not guilty, was tried by a jury, and was found guilty. At the punishment hearing, Hastings entered a plea of true to the two punishment enhancement allegations and the jury assessed punishment at 60 years' imprisonment.
Hastings' conviction was affirmed by the Seventh Court of Appeals of Texas on May 10, 2000. The Texas Court of Criminal Appeals refused Hastings' petition for discretionary review on October 18, 2000. Hastings then filed one state habeas application on June 25, 2001, challenging his conviction. The Texas Court of Criminal Appeals denied the state habeas application on August 15, 2001, without written order.
The Court has reviewed Hastings' petition, Respondent's answer, the state court records, and Hastings' response.
STANDARD OF REVIEW
Hastings' petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). The AEDPA enacted the present 28 U.S.C. § 2254(d), which provides that a state prisoner may not obtain federal habeas 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 proceedings.
Thus, § 2254(d) applies only to claims "adjudicated on the merits" in the state courts. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000). "The term `adjudication on the merits,' . . . refers solely to whether the state court reached a conclusion as to the substantive matter of a claim, as opposed to disposing of the matter for procedural reasons." Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2000), rehrg denied 4-12-02.
For cases found to have been adjudicated on the merits in state court, the Supreme Court has determined that a federal court may grant a writ under the § 2254(d)(1) "contrary to" clause, only "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." William v. Taylor, 529 U.S. 362, 413 (2000). "Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ :f the state court identifies the correct governing legal principle from the [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court has] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1918 (2001) (citing Williams v. Taylor, 527 U.S. at 410-11).
Pure questions of law and mixed questions of law and fact should be reviewed under § 2254(d)(1), while pure questions of fact should be reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir, 2000); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
The "denial" of habeas relief by the Texas Court of Criminal Appeals serves, under Texas law, to dispose of the merits of the state habeas claim. Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). See Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (holding that "denial" signifies the court addressed and rejected the merits of a claim, while "dismissal" means the court declined to consider the claim for reasons unrelated to the merits). If faced "with a silent or ambiguous state habeas decision, the federal court should `look through' to the last clear state decision on the matter" to determine whether the state court decision was procedural or substantive. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).
"When one reasoned state court decision rejects a federal claim . . ., orders upholding that judgment or rejecting the same claim are considered to rest on the same ground as did the reasoned state judgment." Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999). This "look through" doctrine enables a federal habeas court "to ignore — and hence, look through — an unexplained state court denial and evaluate the last reasoned state court decision." Id.
In reviewing a state prisoner's habeas petition, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998).
"The presumption of correctness . . . now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those findings of fact are presumed to be correct." Valdez v. Cockrell, 274 F.3d at 949.
GROUNDS FOR RELIEF
Hastings raises the following issues:
(1) He was denied due process when the trial courts failed to file a timely "order of transfer" conferring jurisdiction upon the 137th District Court; therefore, the trial court lacked jurisdiction to try his case.
(2) There was no evidence to prove a culpable mental state that he knew he was within 1000 feet of a school.
(3) He was denied due process when the state presented extraneous offenses during the guilt/innocence stage of trial.
(4) He was denied effective assistance of counsel because:
(a) the trial court overruled his counsel's motion to withdraw as the attorney of record;
(b) counsel failed to object to the state's closing argument;
(c) counsel failed to object to the jury array as being under-representative of the black population;
(d) counsel failed to adequately investigate his prior convictions and failed to object to the use of the prior convictions as being void under Texas law because the jury waiver was not properly signed as required by law; and
(e) counsel failed to investigate one of his prior convictions and failed to object to the use of the conviction as being void because the statute was held unconstitutional.
DISCUSSION
Hastings claims that he was denied due process when the trial courts failed to file a timely "order of transfer" conferring jurisdiction upon the 137th District Court; therefore, the trial court lacked jurisdiction to try his case.The indictment against Hastings was returned in the 237th District Court of Lubbock County, Texas. Hastings' case was transferred to the 137th District Court for trial. The Order of Transfer and Consent to Transfer were signed on January 13, 1999, and file-marked by the Clerk at 3:42 p.m. on that day. Hastings' trial began at 9:00 a.m. on January 13, and he argues that the 137th District Court did not have jurisdiction to try his case because the transfer order was not "signed" until approximately 3:42 p.m. Although the transfer order and consent were filed as of 3:42 p.m., there is nothing to indicate exactly what time the order and consent were signed by the respective judges.
Hastings' claim is without merit. See Devila v. State, 651 S.W.3d 797 (Tex.Cr.App. 1983) ("Further, if the validity of the transfer order could be questioned in any way, Judge McFall of the 237th District Court had the right to sit in the 72nd District Court on an exchange of benches or to hold court for Judge Bevers of the 72nd District Court."); Evans v. State, 61 S.W.3d 688 (Tex.App. ___ Ft. Worth 2000) (failure of the record to show filing of transfer order is procedural error, not a jurisdictional error); Manning v. Warden, La. State Penitentiary, 786 F.2d 710, 711 (5th Cir. 1986) (if violation of state procedure, petitioner must show his trial was rendered fundamentally unfair).
Hastings has not alleged that any delay in filing the transfer order had any impact on the outcome of his trial, and he has failed to show that his trial was rendered fundamentally unfair.
In his second claim, Hastings alleges that there was no evidence to prove that he knew he was within 1000 feet of a school.
The indictment charged Hastings with the felony offense of delivery of a controlled substance. The indictment also alleged that the offense was committed within 1000 feet of a school. The allegation that he committed the offense within 1000 feet of a school is a punishment enhancement allegation under Tex. Health Safety Code Ann. § 481.134(b)(1) (Vernon 1997). See Young v. State, 14 S.W.3d 748 (Tex.Cr.App. 2000). Under the punishment enhancement provision, a jury is required to find beyond a reasonable doubt that the offense was committed within 1000 feet of a school. Young v. State, 14 S.W.3d at 753. The enhancement statute does not contain an element of intent.
The court of appeals addressed the sufficiency of evidence claim on direct appeal and found that there was sufficient evidence to show the drug offense was committed within 1000 feet of a school, which evidence supported the punishment enhancement.
"Habeas relief under section 2254 on a claim of insufficient evidence is appropriate only `if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" West v. Johnson, 92 F.3d 1385, 1393 (5th Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 317 (1979)). "A determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Carter v. Johnson, 131 F.3d 452, 460 (5th Cir. 1997).
"[S]ufficiency of the evidence may only be raised on direct appeal and not in state habeas." West v. Johnson, 92 F.3d at 1398 n. 18.
In reviewing claims of insufficient evidence to support a state court conviction, a federal habeas court must determine "whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt." Donahue v. Cain, 231 F.3d 1000, 1004 (5th Cir. 2000) (internal quote and citations omitted). All credibility choices and conflicting inferences are to be resolved in favor of the verdict. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999); United States v. Nguyen, 28 F.3d 477, 480 (5th Cir. 1994).
The court of appeals concluded that the evidence was legally and factually sufficient to sustain Hastings' conviction. Further, this Court has reviewed the transcript of the state trial and finds that a rational juror could have found Hastings guilty of delivery of a controlled substance within 1000 feet of a school, a drug free zone.
Hastings next claims that he was denied due process when the state presented evidence of three unadjudicated extraneous offenses during the guilt/innocence stage of trial. These three transactions occurred approximately two weeks prior to the transaction for which he was charged. A hearing was conducted outside the presence of the jury, and the court ruled that the evidence of the three transactions was admissible to show a continuing course of conduct.
State evidentiary rulings, even if erroneous, are matters for federal habeas corpus review only if they are of such magnitude as to constitute a denial of fundamental fairness under the Due Process Clause. Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir. 1986); Givens v. Cockrell, 265 F.3d 306, 308 (5th Cir. 2001) ("We grant habeas relief only when `the violation of the state's evidentiary rules results in a denial of fundamental fairness.'") (quoting Herrera v. Collins, 904 F.2d 944, 949 (5th Cir. 1990)). The erroneous admission of prejudicial evidence justifies federal habeas relief only when it is material in the sense of a crucial, critical, highly significant factor. Mullen v. Blackburn, 808 F.2d 1143, 1145 (5th Cir. 1987). To warrant relief, the erroneously admitted evidence must do more than merely affect the verdict; it must render the trial as a whole unfair. Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir. 1981).
"If evidence of an extraneous offense is wrongfully admitted, however, habeas corpus relief is proper only if the error is of such magnitude that it resulted in `fundamental unfairness.'" Hafdahl v. Johnson, 251 F.3d 528, 536 (5th Cir.) (quoting Blankenship v. Estelle, 545 F.2d 510, 516-17 (5th Cir. 1977)), cert. denied, 122 S.Ct. 629 (2001).
Hastings has failed to show how he was prejudiced by the testimony regarding the extraneous offenses.
The court of appeals addressed this claim on direct appeal and found that "any potential impact of the extraneous offense was, at best, slight" and that "any wrong committed by the trial court in admitting the evidence was harmless."
Hastings has failed to show that the introduction of the unadjudicated extraneous offenses resulted in a denial of fundamental fairness. His claim is without merit.
Lastly, Hastings alleges that he was denied effective assistance of counsel because:
(a) the trial court overruled his counsel's motion to withdraw as the attorney of record;
(b) counsel failed to object to the state's closing argument;
(c) counsel failed to object to the jury array as being under-representative of the black population;
(d) counsel failed to adequately investigate his prior convictions and failed to object to the use of the prior convictions as being void under Texas law because the jury waiver was not properly signed as required by law; and
(e) counsel failed to investigate one of his prior convictions and failed to object to the use of the conviction as being void because the statute was held unconstitutional.
The Supreme Court, in Strickland v. Washington, 466 U.S. 668, 687 (1984), established a two-prong standard for ineffective-assistance-of-counsel claims. First, Hastings must demonstrate that his counsel's performance was deficient and, second, that the deficient performance prejudiced the defense. To show that the performance was deficient, Hastings must show that "counsel made errors so serious that counsel was not functioning as the "counsel' guaranteed the defendant by the Sixth Amendment." Id. To show prejudice, Hastings must show that his counsel's "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Deficient performance will be found to be prejudicial only upon a showing that, but for counsel's errors, there is a reasonable probability that the final result would have been different and that confidence in the reliability of the verdict is undermined. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Armstead v. Scott, 37 F.3d 202, 206-07 (5th Cir. 1994).
A defendant must show "actual prejudice" as a result of his counsel's deficient performance. Moody v. Johnson, 139 F.3d 477, 482 (5th Cir. 1998). Hastings is required to show "that the attorney's errors were so deficient as to render the verdict fundamentally unfair or unreliable." Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997). This "performance inquiry" is to be made applying a reasonableness standard; i.e., was counsel's assistance reasonable under all the circumstances, making the assessment, not in hindsight, but evaluating the conduct from counsel's perspective at the time of the conduct. Thus, the reviewing court is to be highly deferential in scrutinizing counsel's performance. Strickland, 466 U.S. at 688-89.
"The failure to prove either deficient performance or actual prejudice forecloses an ineffective assistance claim." Green v. Johnson, 160 F.3d 1029 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999). See Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997) (stating that the presence or absence of prejudice at either trial or appellate level hinges upon the fairness of the trial and the reliability of the verdict). It is not necessary, however, for a district court to address both requirements of the conjunctive Strickland standard when addressing an ineffective assistance claim; such a claim may be disposed of solely on a petitioner's failure to meet either requirement. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).
A petitioner must affirmatively prove and not merely allege prejudice. Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995); Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). See Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (stating that the Fifth Circuit requires an appreciable showing of prejudice).
Conclusory allegations unsupported by any specific facts do not merit a federal court's attention. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) ("mere conclusory allegations on a critical issue are insufficient to raise a constitutional claim"); Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (finding "speculation" of ineffective assistance to be no basis for habeas relief).
All of Hastings' ineffective-assistance-of-counsel claims were raised in his state habeas proceeding. The state trial court entered a "Certificate of Decision" on July 13, 2000, wherein the court found that "applicant has failed to plead any facts to establish his claims or support the prejudice requirement of ineffective assistance of counsel." The Texas Court of Criminal Appeals denied Hastings' state habeas application without written order. This was an adjudication on the merits.
As to Hastings' conflict-of-interest claim, he has failed to demonstrate that but for his counsel's actions, the result of his trial would have been different. See Mickens v. Taylor, ___ U.S. ___, 122 S.Ct. 1237 (2002); Strickland v. Washington, supra.
Hastings also claims that his attorney was ineffective because he failed to object to the prosecutor's closing argument.
During the punishment phase of trial, the prosecutor, in closing argument, made the following statement:
If you don't give him life, folks, if you don't give him life, you insult all of those kids going to school over there at Wheatley Elementary. You tell them "you're not worth protecting; you're not worth us taking a drug dealer out of your neighborhood for life."
On direct appeal, Hastings argued that the state made an improper plea to the community. The court of appeals rejected the contention.
In reviewing the effect of improper jury argument by a prosecutor, the asserted error must be of a constitutional magnitude and the prosecutor's remarks must be so prejudicial that they render the trial fundamentally unfair. Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986). The trial is rendered fundamentally unfair only if, in the context of the entire trial, the remarks were crucial, critical, and highly significant factors. Ortega v. McCotter, 808 F.2d 406, 411 (5th Cir. 1987).
"A criminal defendant bears a substantial burden when attempting to demonstrate that improper prosecutorial comments constitute reversible error." United States v. Bankston, 182 F.3d 296, 313 (5th Cir. 1999). "A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone." United States v. Young, 470 U.S. 1, 11 (1985); United States v. Lowenberg, 853 F.2d 295, 302 (5th Cir. 1988).
"Improper comments by a prosecutor may constitute reversible error where the defendant's right to a fair trial is substantially affected." United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990) (citing United States v. Lowenberg, 853 F.2d 295, 301 (5th Cir. 1988)).
To evaluate whether a defendant's right to a fair trial has been substantially affected by prosecutorial comments, "three factors are considered: the magnitude of the prejudicial effect of the remarks, the efficacy of any cautionary instruction, and the strength of the evidence of the defendant's guilt." Bankston, 182 F.3d at 313; United States v. Casel, 995 F.2d 1299, 1308 (5th Cir. 1993).
A plea for law enforcement, as opposed to a plea to the community, is a proper argument. Jones v. Butler, 864 F.2d 348, 360 (5th Cir. 1988) (finding argument that children have a right to feel safe without people breaking in and killing them in the middle of the night to be a proper plea for law enforcement).
Because Hastings' substantial rights to a fair trial were not affected, any failure on the part of his counsel to object to the prosecutor's comments was not prejudicial; therefore, Hastings has failed to meet the "prejudice" prong for his ineffective-assistance-of-counsel claim.
In his third ineffective-assistance-of-counsel claim, Hastings claims that he was denied his right 10 a fair and impartial jury because his attorney did not challenge the racial composition of the jury.
Hastings has failed to establish a prima facie violation of the fair-cross-section requirement. See Duren v. Missouri, 439 U.S. 357, 364 (1979). To the extent that Hastings is alleging a Batson violation, his claim must fail. There is no indication that Hastings ever objected at trial to the composition of the jury; therefore, he is barred from raising a Batson challenge. Batson v. Kentucky, 476 U.S. 79 (1986); Wilkerson v. Collins, 950 F.2d 1054, 1063 (5th Cir. 1992). Hastings has failed to show that a Batson violation occurred.
Hastings' last two ineffective-assistance-of-counsel claims involve an allegation that his attorney failed to investigate and challenge the two prior convictions that were alleged for enhancement of punishment. Hastings pleaded "true" to both enhancement allegations and the trial court, on the record, determined the voluntariness of his plea.
A plea of "true" to an enhancement charge "waives subsequent challenges to the validity of the prior conviction set forth in the charge." Long v. McCotter, 792 F.2d 1338, 1342 (5th Cir. 1986).
To prevail on this ineffective-assistance-of-counsel claim, Hastings must show that his plea of "true" was not voluntarily or intelligently entered. A defendant carries a strong burden of showing the plea was involuntary after testifying to the voluntariness in court. DeVille v. Whitley, supra. Declarations made in open court carry a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
After the jury found Hastings guilty and prior to the punishment phase of trial, the trial court, outside the presence of the jury, questioned Hastings regarding his understanding as to the entry of a plea of true or not true to the enhancement paragraphs. Hastings acknowledged that he understood that he had the right to plead "not true" and to make the state prove the charges. Hastings was again questioned, in the presence of the jury, regarding his understanding as to his available pleas to the enhancement paragraphs. He acknowledged that he understood his rights. Thereafter, Hastings entered a plea of true to both enhancement paragraphs.
Hastings has failed to show that his plea of "true" was involuntarily entered.
CONCLUSION
Based upon the above findings and the facts and law set forth in Respondent's Answer, the Court finds that Hastings' federal habeas petition should be denied.
It is, therefore, ORDERED that Hastings' petition for a writ of habeas corpus is denied and this case is dismissed with prejudice.
Any pending motions are denied.