Opinion
NO. 3-03-CV-0566-D
August 21, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Alvis Ray Hereford, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted in a bench trial of aggravated robbery and sentenced to 25 years confinement. His conviction and sentence were affirmed on direct appeal. Hereford v. State, No. 05-00-01430 (Tex.App.-Dallas, Sept. 27, 2001, pet. dism'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order on the findings of the trial court. Ex parte Hereford, No. 53, 539-01 (Tex.Crim.App. Jan. 15, 2003). Petitioner then filed this action in federal court.
II.
In nine grounds for relief, petitioner contends that: (1) he was punished by the trial judge for failing to accept a plea bargain; (2) counsel signed a written confession without his knowledge or consent; (3) he was denied the right to an examining trial; (4) the evidence was insufficient to support his conviction; (5) the trial court refused to rule on his pro se motions and coerced him into accepting representation from his attorney; (6) the prosecutor improperly withheld exculpatory evidence; (7) his right to a speedy trial was violated; (8) his sentence is excessive; and (9) he received ineffective assistance of counsel.
III.
As a preliminary matter, respondent argues that petitioner's first three claims are barred from federal habeas review because they were never presented to the highest available state court in a procedurally correct manner and any attempt to do so at this juncture would be futile.
A.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982). Article 11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2003). This statute constitutes an adequate state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603 (1995), citing Ex parte Barber, 879 S.W.2d 889, 892 n.l (Tex.Crim.App. 1994), cert. denied, 115 S.Ct. 739 (1995). The procedural bar doctrine also applies to unexhausted claims if the state court would likely dismiss a successive habeas petition under article 11.07. See Coleman v. Thompson, 501 U.S. 722, 735 n.l, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (procedural default occurs when prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred"); Bledsoe v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999).
The statute provides, in relevant part, that:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt . . .
TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a).
B.
In his first three grounds for relief, petitioner contends that: (1) he was punished by the trial judge for failing to accept a plea bargain; (2) counsel signed a written confession without his knowledge or consent; and (3) he was denied the right to an examining trial. A careful review of the state court record reveals that none of these claims were made on direct appeal or collateral review. No explanation is offered to excuse this procedural default. The court finds that a Texas court, presented with these claims in a successive habeas petition, would likely find them barred under article 11.07. Consequently, federal habeas relief is not proper. See Coleman, 111 S.Ct. at 2557 n. 1; Bledsoe, 188 F.3d at 254.
IV.
Petitioner also contends that: (1) the evidence was insufficient to support his conviction; (2) the trial court refused to rule on his pro se motions and coerced him into accepting representation from his attorney; (3) the prosecutor improperly withheld exculpatory evidence; (4) his right to a speedy trial was violated; (5) his sentence is excessive; and (6) he received ineffective assistance of counsel. These claims have been exhausted and are properly before the court.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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 state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "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., 120 S.Ct. at 1523. See also Neal v. Puckett, 286 F.3d 230, 246 n. 14 (5th Cir. 2002) (declining to further elaborate on the "objectively unreasonable" standard articulated in Williams). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
Petitioner maintains that the evidence was legally and factually insufficient to support his conviction because he was acting in self-defense at the time of the shooting and several witnesses contradicted the complainant's testimony.
The court notes that factual insufficiency of the evidence does not provide an independent basis for federal habeas relief. "Factual insufficiency" is a creation of Texas law whereby the reviewing court scrutinizes the factfinder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). However, the relevant inquiry in a federal habeas proceeding is whether "[a] rational trier of fact could have found proof of guilt beyond a reasonable doubt." Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir.), cert. denied, 111 S.Ct. 265 (1990), quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). This standard of review controls even if state law would impose a more demanding standard of proof. Schrader, 904 F.2d at 284. See also Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991).
1.
Federal habeas review of a claim based on sufficiency of the evidence is extremely limited. A federal court may not disturb a conviction in a state criminal proceeding unless no rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Gibson v. Collins, 947 F.2d 780, 781 (5th Cir. 1991), cert. denied, 113 S.Ct. 102 (1992). The evidence must be viewed in the light most favorable to the verdict. Jackson, 99 S.Ct. at 2789; Gibson, 947 F.2d at 781. This standard of review applies in both direct and circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir.), cert. denied, 111 S.Ct. 265 (1990).Federal courts are bound by state statutes and case law in determining the elements of an offense. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Under Texas law, a person commits the offense of aggravated robbery if: (1) while in the course of committing theft, (2) with the intent to obtain or maintain control of property, (3) he intentionally and knowingly causes bodily injury to another person, and (4) uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. §§ 29.03(a)(2)
29.02(a)(2) (Vernon 1999); Arthur v. State, 11 S.W.3d 386, 389 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd).
2.
Petitioner was charged by indictment with intentionally and knowingly causing bodily injury to John Lewis by shooting him with a firearm while in the course of committing theft. (St. App. Tr. at 2). At trial, Lewis testified that petitioner came to his home during the early morning hours of June 2, 1999. Lewis, who had loaned $4.00 to petitioner several hours earlier, said that petitioner returned to demand another $4.00. Before Lewis could respond, petitioner stated, "Oh, I know what I'm going to have to do. I'm going to have to kill you for that $4.00." (SF-I at 26). Petitioner then grabbed a 12-gauge shotgun that was laying on a cot next to Lewis, shot him in the right side, and took the money from him. ( Id. at 24-26). Initially, Lewis told the police that petitioner had stolen $1,600.00. ( Id. at 10, 13). However, at the time this statement was made, Lewis was in shock, heavily medicated, and "in and out" of consciousness. ( Id. at 12, 40). Petitioner testified that he shot Lewis in self-defense while struggling for control of the shotgun. ( Id. at 60-61). According to petitioner, the gun fired only because Lewis pulled the trigger. ( Id.).
In finding petitioner guilty of aggravated robbery, the trial court implicitly rejected his challenge to the credibility of Lewis' testimony and his claim of self-defense. The state appellate court affirmed the conviction, finding that "[a]ny conflicts in the evidence were resolved by the fact finder." Hereford, No. 05-00-01430-CR, op. at 5. Petitioner has failed to show that this decision is contrary to federal law or unreasonable in light of the evidence presented at trial. See United States v. Nguyen, 28 F.3d 477, 480 (5th Cir. 1994) (credibility issues are decided by trier of fact). Consequently, this ground for relief should be overruled.
C.
Petitioner next contends that the trial court refused to rule on his pro se motions and coerced him into accepting representation from his attorney. Both claims are without merit. Although a defendant has a constitutional right to represent himself, there is no right to hybrid representation. See United States v. Mikolajczyk, 137 F.3d 237, 246 (5th Cir.), cert. denied, 119 S.Ct. 250 (1998). The trial court was not obligated to rule on motions filed by petitioner because he was represented by counsel.
Nor was petitioner entitled to choose his own court-appointed lawyer. On July 22, 1999, the court appointed Tracy Holmes, a public defender, to represent petitioner. After two failed attempts to retain private counsel, petitioner hired Earl Cross on October 15, 1999. Then, just three months before trial, petitioner fired Cross and asked the judge to reappoint Holmes. ( See St. App. Tr. at 4, 12). His request was denied. This decision is neither contrary to federal law nor unreasonable. See Neal v. Texas, 870 F.2d 312, 315 (5th Cir. 1989) (no constitutional right to be represented by a particular attorney); see also United States v. Hughey, 147 F.3d 423, 428 (5th Cir.), cert. denied, 119 S.Ct. 569 (1998).
The record shows that petitioner tried to hire Randy Eisenberg and Leroy Johnson. It is not clear whether either attorney ever accepted representation or entered an appearance in the case. (St. App. Tr. at 4).
D.
Petitioner further complains that the prosecutor failed to produce evidence favorable to the defense, including witness statements, grand jury testimony, and criminal records of witnesses. This claim fails for two reasons. First, petitioner has failed to show that the prosecutor withheld any exculpatory evidence. To the contrary, Earl Cross told the state habeas court that "[t]he prosecutor had turned over his complete file to me which I discussed with Mr. Hereford. I do not know what if any exculpatory evidence was withheld by the prosecution." (St. Hab. Tr. at 54). Second, even if the prosecutor failed to produce certain materials, petitioner has not shown that this evidence was favorable to the defense. See Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993) (petitioner must prove that prosecution withheld favorable evidence in order to establish Brady violation). Petitioner's conclusory allegations of prosecutorial misconduct are insufficient to support a claim for habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
E.
Petitioner contends that his right to a speedy trial was violated because the case did not proceed to trial for more than a year after his arrest and indictment.
1.
The Sixth Amendment guarantees a defendant in a criminal case the right to a speedy trial. U.S. CONST. amend VI; Barker v. Wingo, 407 U.S. 514, 519-22, 92 S.Ct. 2182, 2186-88, 33 L.Ed.2d 101 (1972). The court must consider four factors in order to determine whether this right has been violated: (1) the length of delay; (2) the reason for the delay; (3) when the defendant asserted his right; and (4) prejudice to the defendant resulting from the delay. Id., 92 S.Ct. at 2192; United States v. Lucien, 61 F.3d 366, 371 (5th Cir. 1995). The threshold inquiry is the length of delay. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992). If the delay between the date of arrest or indictment and the date of trial is presumptively prejudicial, the court must consider the other factors. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993), cert. denied, 114 S.Ct. 1197(1994).
2.
Petitioner was arrested on June 23, 1999 and indicted on July 15, 1999. However, the case was not tried until August 4, 2000. The Fifth Circuit has held that such a delay is presumptively prejudicial. Id. at 568 (delay of more than one year between date of arrest or indictment and date of trial is presumptively prejudicial); United States v. Garcia, 995 F.2d 556, 560(5th Cir. 1993) (same). Therefore, the court must examine the other Barker factors to determine whether petitioner's right to a speedy trial was violated.
In support of his claim, petitioner states that the "[p]rosecution put off, stalled, delayed, and set off the case and court date numerous times, in that year plus, to give them ample time to build a case." (Hab. Pet., Attch. at 6). However, other than this conclusory allegation, there is no evidence of intentional delay on the part of the state or substantial prejudice to petitioner. Moreover, petitioner did not demand a speedy trial until May 22, 2000. (St. App. Tr. at 15). The case was tried less than three months after this request was made. Under these circumstances, there is no Sixth Amendment violation. See United States v. Crosby, 713 F.2d 1066, 1078-79 (5th Cir.), cert. denied, 104 S.Ct. 506 (1983) (speedy trial violation under Sixth Amendment requires proof of actual, substantial prejudice or evidence of intentional, tactical delay by prosecution).
F.
Petitioner further argues that his sentence is excessive in light of his advanced age, medical condition, and the absence of an habitual criminal record.
1.
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. This includes the imposition of a sentence that is greatly disproportionate to the offense. U.S. CONST. amend VIII; Harmelin v. Michigan, 502 U.S. 957, 997, 111 S.Ct. 2680, 2702, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). The court must first determine whether the sentence is grossly disproportionate. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 113 S.Ct. 146 (1992). Once this threshold is met, the court should consider sentences imposed for other crimes in the jurisdiction and sentences imposed for the same crime in other jurisdictions. McGruder, 954 F.2d at 316, citing Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637 (1983).
2.
Petitioner was sentenced to 25 years confinement for aggravated robbery. Under Texas law, the maximum sentence for this offense is 99 years or life imprisonment. TEX. PENAL CODE ANN. §§ 12.32(a) 29.03(c) (Vernon 1999). The sentence imposed by the trial court is fully justified by the evidence, which shows that petitioner shot a 77-year old minister with a shotgun while attempting to steal $4.00. Other offenders have received comparable sentences in similar cases. See, e.g. Alberto v. State, 100 S.W.3d 528 (Tex.App.-Texarkana 2003, no pet.) (20 year sentence); Thomas v. State, 84 S.W.3d 370 (Tex.App.-Beaumont 2002, pet. ref'd) (35 year sentence); Garza v. State, 82 S.W.3d 791 (Tex.App.-Corpus Christi 2002, no pet) (25 year sentence). Petitioner has failed to establish that his sentence is excessive or constitutes cruel and unusual punishment.
G.
Finally, petitioner complains that he received ineffective assistance of counsel at trial because his attorney: (1) represented him against his wishes; (2) failed to subpoena several defense witnesses; (3) did not effectively cross-examine the complainant; (4) never asked the court to make the complainant show his wound; (5) did not point out that the complainant is blind in his left eye; (6) failed to object to the admission of tampered photographs of the crime scene; (7) did not obtain hospital records showing that the complainant was intoxicated; (8) failed to review the photographs offered into evidence by the state; (9) did not elicit evidence that petitioner was paid on the first and third day of every month, thus negating a motive for the robbery; and (10) failed to object when the complainant could not identify petitioner in open court. Petitioner also criticizes his appellate lawyer for failing to raise an ineffective assistance of counsel claim on direct appeal.
1.
In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner first must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
Petitioner first contends that counsel was ineffective for continuing to represent him against his wishes. As previously discussed, the trial court refused to discharge Earl Cross after he was fired by petitioner. In view of this ruling, Cross was obligated to continue his representation.
Next, petitioner complains that his attorney failed to subpoena five witnesses to testify at trial. Only three of these witnesses are identified by name: (1) Renee Bates; (2) Tiffany Felix; and (3) Bob Maxum. The court initially observes that Maxum, a Dallas police officer, testified at trial on behalf of the state. On cross-examination, Maxum confirmed that Felix, a suspected prostitute, had visited Lewis on the evening prior to the shooting. (SF-I at 44-45). Petitioner has failed to show what relevant testimony, if any, would have been given by Bates, Felix, and the unidentified witnesses had they been subpoenaed by defense counsel. Without such a showing, petitioner cannot establish his entitlement to habeas relief. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot begin to analyze claim of ineffective assistance of counsel without affirmative showing of missing evidence or testimony).
Petitioner further contends that defense counsel failed to effectively cross-examine Lewis. However, the record shows that counsel extensively questioned Lewis about the events on the night of the shooting and the inconsistent statements he allegedly made to the police. Contrary to petitioner's assertion, counsel specifically asked Lewis whether prostitutes were at his house before the shooting and whether he was intoxicated at the time. ( See SF-I at 27-28). Counsel also inquired if Lewis had told the police that he had $1,600.00 in his possession and whether he had been shot in a struggle over the shotgun. ( Id. at 28-30). These and other facts critical to petitioner's defense were fully explored by counsel on cross-examination.
Petitioner's other claims of ineffective assistance of counsel are equally frivolous. Because petitioner admitted to shooting Lewis, albeit accidently and in self-defense, identity was not at issue. ( See id. at 61). Therefore, there was no need for counsel to scrutinize photographs of the crime scene, ask the complainant show his wound, or point out that the complainant is partially blind. Nor has petitioner shown that counsel was ineffective for failing to obtain the complainant's hospital records. Other than petitioner's self-serving and conclusory assertions, there is absolutely no evidence that Lewis was intoxicated at the time of the shooting. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Barnard v. Collins, 958F.2d 634, 642n.11 (5th Cir. 1992), cert. denied, 113 S.Ct. 990 (1993) (habeas petitioner must show how alleged errors and omissions were constitutionally deficient).
The court notes that, contrary to petitioner's assertion, Lewis was able to identify petitioner in a photo line-up and in open court. (SF-I at 23-24, 42, 47). Defense counsel also elicited evidence that petitioner was scheduled to be paid the day after the shooting. ( Id. at 27).
Finally, petitioner has failed to demonstrate that the performance of his appellate lawyer was constitutionally deficient. The court has previously determined that petitioner did not receive ineffective assistance of counsel at trial. Consequently, it would have been futile for counsel to challenge petitioner's conviction on that basis on direct appeal. See Smith v. Collins, 977 F.2d 951, 962 (5th Cir. 1992), cert. denied, 114 S.Ct. 97 (1993) (counsel not required to raise frivolous issues on appeal). This ground for relief is without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.