Opinion
Civil Action No. 02-1123, SECTION: "K" (1)
September 3, 2002
REPORT AND RECOMMENDATION
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court generally may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner, Derrick Hopson, is a state court prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On June 5, 1998, petitioner was found guilty of second degree murder in violation of La.Rev.Stat.Ann. § 14:30.1 (West 1997). On June 25, 1998, petitioner was sentenced to a term of life imprisonment without the benefit of parole, probation or suspension of sentence. On March 30, 1999, petitioner's conviction was affirmed by the Louisiana Fifth Circuit Court of Appeal. Petitioner filed with the Louisiana Supreme Court an application for a writ of certiorari which was denied on November 12, 1999.
State Rec., Vol. IV of IV, transcript of June 2-5, 1998, p. 631; State Rec., Vol. I of IV, minute entry dated June 5, 1998.
State Rec., Vol. IV of IV, transcript of June 25, 1998, p. 8; State Rec., Vol. I of IV, minute entry dated June 25, 1998.
State v. Hopson, 735 So.2d 81 (La.App. 5th Cir. 1999); Rec. Doc. 1. The intermediate appellate court also ordered that the case be remanded for the state district court to inform petitioner of the time limits for filing a state post-conviction application.
It must be noted that the state has not submitted the state record regarding petitioner's direct appeal or post-conviction proceedings. Petitioner, however, has attached to his federal application, Rec. Doc. 1, what appear to be the pertinent documents relating to the appellate and post-conviction proceedings. In light of the fact that the state has neither objected to the authenticity of those documents nor raised exhaustion as a defense, this Court will accept petitioner's documents as accurate records relating to his direct appeal and post-conviction proceedings.
Rec. Doc. 1.
State v. Hopson, 749 So.2d 650 (La. 1999); Rec. Doc. 1.
On April 17, 2000, petitioner filed with the state district court an application for post-conviction relief which was denied on November 3, 2000. Petitioner filed with the Louisiana Fifth Circuit Court of Appeal an application for a writ of certiorari and/or review which was denied on December 20, 2000. Petitioner then filed with the Louisiana Supreme Court an application for a writ of certiorari and/or review which was denied on November 2, 2001.
Rec. Doc. 1.
Rec Doc. 1.
Rec. Doc. 1.
Hopson v. Cain, No. 00-KH-1905 (La.App. 5th Cir. Dec. 20, 2000) (unpublished); Rec. Doc. 1.
Rec. Doc. 1.
State ex rel. Hopson v. State, 800 So.2d 870 (La. 2001); Rec. Doc. 1.
On February 18, 2002, petitioner filed his application for federal habeas corpus relief. In support of his application, petitioner asserts the following claims:
Rec. Doc. 1.
1. There was insufficient evidence to support his conviction;
2. Petitioner's constitutional rights were violated when the prosecution presented evidence at trial regarding other crimes;
3. Petitioner was denied his rights under the Confrontation Clause of the United States Constitution; and
4. Petitioner received ineffective assistance of counsel.
The state concedes that petitioner's federal application was timely filed and that he has exhausted his state court remedies. Therefore, this Court will address petitioner's claims on the merits.
Rec. Doc. 5, Answer, p. 3.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of law, questions of fact, and mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001).
As to questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The United States Supreme Court recently noted:
§ 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams[v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. ___, ___, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002) (citations omitted).
As to questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); see also 28 U.S.C. § 2254 (e)(1); Hill, 210 F.3d at 485.
Facts
The facts of this case were succinctly summarized by the Louisiana Fifth Circuit Court of Appeal as follows:
This case arises out of the shooting death of Sean Palmer in Luling on May 10, 1997. In the afternoon of that day, a dice game took place in the area of Paul Maillard and Paul Fredrick Streets. Among those present at that game were Sean Palmer, Cleveland Williams, III, and defendant. After the game broke up, Williams and Palmer went to Palmer's house. Palmer's girlfriend, Jessica Jupiter, was at the house when they arrived.
Later, two men came and knocked on the front door. Palmer answered the door and spoke to the men on the porch. Palmer then went back inside the house and went into his bedroom for a few moments. Palmer emerged from the bedroom and went back out on the porch with the two men. After speaking with the two men a second time, Palmer again went back inside the house. As the victim was closing the door, a shot rang out and he was hit in the neck. After being shot Palmer yelled for Jessica Jupiter to run out of the back door and he followed her out. As Williams was pushing the door closed, the men on the porch struggled to push the door open. The men on the porch then fired several shots through the door which hit Williams. After being shot, Williams also fled out of the house through the back door. Palmer collapsed behind the house and died.
The St. Charles Parish Sheriffs Office conducted an investigation and identified defendant as one of the two men on the porch who shot Palmer and Williams. As a result of this investigation, a warrant for defendant's arrest was issued and he was subsequently arrested.State v. Hopson, 735 So.2d 81, 82 (La.App. 5th Cir.), writ denied, 749 So.2d 650 (La. 1999).
Rec. Doc. 1.
Sufficiency of the Evidence
Petitioner claims that there was insufficient evidence to support his conviction. The United States Fifth Circuit Court of Appeals has noted that claims of insufficient evidence are to be analyzed pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):
In considering challenges to the sufficiency of evidence in habeas proceedings, "the relevant question is whether, 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."Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (quotingJackson, 443 U.S. at 319, 99 S.Ct. at 2789), cert. denied, U.S. ___, 122 S.Ct. 1463, 152 L.Ed.2d 461 (2002). The Jackson standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16. This Court may find the evidence sufficient even though the facts additionally support one or more reasonable hypotheses which are consistent with petitioner's claim of innocence. Foy v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992); see also Gibson v. Collins, 947 F.2d 780, 783 (5th Cir. 1991). "The Jackson inquiry "does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.'" Santellan, 271 F.3d at 193 (quoting Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993)).
A sufficiency of the evidence argument presents a mixed question of law and fact. Taylor v. Day, 1999 WL 195515, at *3 (E.D. La. April 6, 1999),aff'd, 213 F.3d 639 (5th Cir. 2000). Therefore, this Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The Louisiana Fifth Circuit Court of Appeal considered and rejected petitioner's contention that there was insufficient evidence to support his conviction:
Defendant avers that there was insufficient evidence presented to the trial court to convict him of second degree murder. He argues that his conviction should be overturned because the evidence presented by the state was insufficient to prove his identification as a perpetrator of the crime.
The state's first witness was Edith Jupiter. She testified that on the afternoon of May 10, 1997 she was walking in the neighborhood where Palmer was shot when two men in a white car pulled up next to her and asked her where Pernell "Toe" Simons lived. Ms. Jupiter responded that "Toe" lived on Paul Fredrick Street. Later in the day she saw the same two men talking to "Toe", but was not sure if there was a dice game going on at the time. Ms. Jupiter testified that on the day after the shooting she met with someone from the St. Charles Parish Sheriffs Office who showed her two photographic line-ups. Ms. Jupiter testified that she selected a picture as being that of one of the men in the car and one of the men talking to Pernell "Toe" Simons.[1] She was certain of that identification.
[1] This photo was later identified as being that of defendant., see infra.
The state then called Pernell Simons. He testified that on the day of the shooting he was present at a dice game on Paul Fredrick Street along with Palmer, Williams, and several other people including the defendant. At that time he had known the defendant for ten or eleven years. He testified that later in the evening Palmer told him, in the presence of the defendant, that "he had some big bags of weed." Simons stated that when he left, the defendant and Palmer were speaking to each other. It was acknowledged that Simons was incarcerated at the time of the trial on drug charges unrelated to the present incident. He had previously been convicted of similar drug related crimes. The witness stated that he made no deals in exchange for his testimony.
Jasmine Davis, who lived next door to the house in which the victim was killed, testified that she saw two men standing on the victim's porch. She then heard shots. [2] Before running to the back of her house, she saw the two men jump into a white car and drive away. She was not sure, but thought that the car was a new Mustang.
[2] At trial she testified that she heard ten or eleven shots; but in a statement given to the police the night of the shooting, she stated that she heard five shots. She also stated the car drove off normally, although in her statement she told police the two had "burned rubber".
Jessica Jupiter testified that she, Williams and Palmer were in the apartment when someone knocked on the door. Williams was sitting behind the door. Palmer did not open it wide. She could not see who was outside. The victim told her that she was "too nosey." According to the witness Palmer answered the door and someone outside started shooting. Once the shooting began Palmer told her to run. She fled out of the back of the house to hide in a shed behind the house. She testified that she did not get a good look at the shooters and could not identify them.
Cleveland Williams, III testified that on the afternoon of the shooting two men in a car inquired about a dice game and, in response, a group of men began to play a game. The man in the car lost money in the game. After it broke up, Williams went to Palmer's house. While he was inside someone knocked and Palmer answered the door. Williams testified that he looked out the door and recognized the two men at the door as the two men who had earlier inquired about a dice game. Palmer went out on the porch for a few moments and then came back inside and went into the bedroom. After remaining in the bedroom a few moments, Palmer then went back outside on the porch. Upon returning to the house a second time, Palmer was trying to shut the door when a shot rang out and Palmer was hit. Neither Palmer nor Williams had a gun. Williams attempted to push the door closed and was shot through the door. As he ran into the yard, he saw the white car pull off. Williams had no doubt that defendant was one of the persons on the porch. Williams identified defendant in a line-up as having been at the dice game and on the porch when Palmer was shot.
On cross examination Williams admitted that in a statement to the police after the shooting he claimed that he could not identify the person who shot both him and Palmer. He testified that he denied that he could identify defendant in his statement to the police because he was hysterical from having been shot. In his statement, as well as in his testimony, Williams stated that he believed that both the men on the porch had guns and were shooting.
Billy LeBlanc, technician with the St. Charles Parish Sheriffs Department, testified that he collected evidence at the crime scene on the night of the shooting. He collected spent cartridges and projectiles from the scene along with a loaded handgun clip. He also identified and photographed two trails of drops of what appeared to be blood. One trail led from the front door, through the house, into the back-yard and ended where Palmer collapsed. Near the blood in the house, LeBlanc collected a plastic bag filled with green vegetable matter which he felt was marijuana. The second trail led from the front door to the driveway. The witness also found a small container of what appeared to be crack cocaine and a shoe box with more (of what he believed was) marijuana. LeBlanc was present at the execution of a search warrant on the defendant's auto, a white 1987 Ford Taurus. At that time he recovered from the back of the vehicle a white diaper with 15 small plastic bags of a substance he identified as marijuana. Following objection by the defense, the trial judge instructed the jury that the matter had not been tested and proven to be drugs. The defense elicited testimony that no lab tests were done on the material. Nevertheless, the witness testified that he had seen marijuana many times in his 23 years as a technician. No gun was ever recovered from the scene. No blood was found in the car.
Dr. Susan Garcia performed the autopsy on Palmer. She testified that Palmer died from a single gunshot wound to the neck. The projectile that produced the wound was recovered from Palmer's body and turned over to the police. The state also called Louise Waltzer as an expert in firearm examination. She testified that the projectiles and cartridges collected at the crime scene were fired from the same gun.
Detective Donnie Smith testified that he responded to the report of a shooting. He noticed a spent bullet casing, a fully loaded magazine and blood inside the house. Following a trail of blood around the side of the house, he found the victim.
Detective Pamela Negrotto testified that on the night of the shooting she went from the crime scene to the hospital to interview Cleveland Williams. He told her he had been shot by someone he played dice with earlier that day. He told her that Pernell "Toe" Simons also knew the perpetrator. Williams identified defendant's photo from a photographic lineup as the man who shot him. Such lineup was also shown to Edith Jupiter who identified photo # 3, that of the defendant, as the man at the dice game. Jessica Jupiter was unable to make an identification.
Detective Robert Lynch testified that a line-up was presented to Williams which contained a photo of defendant. Williams said he was "one hundred percent positive that that was the one that shot him and Sean." The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. [FN3] State v. Mussall, 523 So.2d 1305 (La. 1988); State v. Styles, 96-897 (La.App. 5th Cir. 3/25/97), 692 So.2d 1222, 1232, writdenied, 97-1069 (La. 10/13/97), 703 So.2d 609.
[FN3] Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979),
When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." State v. Guccione, 96-1049 (La.App. 5th Cir. 4/29/97), 694 So.2d 1060, writ denied, 97-2151 (La. 3/13/98), 712 So.2d 869. The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. State v. Captville, 448 So.2d 676 (La. 1984); State v. Guccione, supra. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Guccione, supra.
The defendant in this case was charged with second degree murder. Louisiana Revised Statute 14:30.1 states in pertinent part that:
A. Second degree murder is the killing of a human being.
(1) When the offender has a specific intent to kill or to inflict great bodily harm; . . .
At trial defendant did not present any witnesses. On appeal defendant seeks to refute the evidence presented against him by denoting inconsistencies in the witnesses' statements. Defendant points to the statement of Jasmine Davis that the defendants drove away in a white Mustang, and that defendant's auto was a white Ford Taurus. He also alludes to the difference in the statements of Williams and Jupiter as to where Williams was seated and whether he got up to see who knocked on the door. Defendant also states that there was a trail of blood leading to the driveway, indicating that the perpetrator was injured. However, the defendant showed no sign of injury when arrested three days later, and there was no blood in the car.
It is not the function of a reviewing court on appeal of a criminal conviction to evaluate the credibility of witnesses to overturn a trial court on its factual determination of guilt. State v. Richardson, 425 So.2d 1228 (La. 1983); State v. Jiron, 96-319 (La.App. 5th Cir. 10/1/96), 683 So.2d 769, 771. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge orjury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Jiron, supra. Both this Court and the Louisiana Supreme Court have held that it is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Styles, 692 So.2d at 1233; State ex rel. Graffagnino v. King, 436 So.2d 559, at 563.
In the present case, the testimony of Williams was quite adamant and consistent that he saw and recognized the defendant on the porch at the scene of the murder. He also made an in court identification. In his earlier statements to the police, according to the officers, Williams identified the defendant as the man who shot him and Palmer, although he could not identify defendant's companion from a lineup. Williams did not testify at trial that the defendant was the one who shot the victim, or specifically identify him as such. He testified emphatically that the two men were both attempting to force their way into the victim's home, and that they started shooting.
La.R.S. 14:24 states that:
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.
We discussed specific intent relative to principal to second degree murder, in State v. Meyers, 95-750 (La.App. 5th Cir. 11/26/96), 683 So.2d 1378. There we said:
under LSA-R.S. art. 14:24, not all principals are automatically guilty of the same grade of offense. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of the crime, depending upon the mental element proved at trial. Thus, an individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Brooks, 505 So.2d 714 (La. 1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987), rehearing denied, 484 U.S. 1021, 108 S.Ct. 737, 98 L.Ed.2d 684 (1988). It is not enough to find merely that his accomplice had the necessary mental state, since this intent cannot be imputed to the accused. State v. Holmes, 388 So.2d 722 (La. 1980).
Thus in order to support a conviction as a principal to second degree murder, the State must show that the defendants had specific intent to kill or to inflict great bodily harm. See State v. Francis, 486 So.2d 346 (La.App. 3rd Cir. 1986), writ denied, 492 So.2d 1216 (La. 1986).
Specific intent is: "that state of mind which exist when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act ." LSA-R.S. 14:10(1). Since specific intent is a state of mind, it need not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of the defendant. See State v. Graham, 420 So.2d 1126 (La. 1982).
When circumstantial evidence is used to show specific intent, LSA-R.S. 15:438 should be considered as it provides a rule regarding the use of such evidence. The rule directs the fact finder, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove, and then to convict only if every reasonable hypothesis of innocence is excluded. State v. Lilly, 468 So.2d 1154 (La. 1985).
The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and a review of the correctness of this determination is to be guided by the Jackson standard. State v. Huizar, 414 So.2d 741 (La. 1982).
In addition to the testimony of Williams, there was testimony by Simons that the victim told him in the presence of the defendant he had marijuana to sell. In the bedroom of the house, where the victim went after initially speaking to the men on the porch, police found and identified a box of what appeared to the crime scene technician (of 23 years experience) to be marijuana, and a container of crack cocaine. In defendant's car 15 bags of, what was apparently marijuana, were discovered. Although the substances were not tested and positively identified as contraband, we find the jury could have reasonably concluded that they were, indeed, marijuana. We further find that the jury could have reasonably concluded that the murder took place during an illegal drug transaction gone awry between the victim and the defendant. One or both of the men had guns, both attempted to break down the door of the victim's home and one or both of them fired at the deceased and Williams. From the circumstances of the transaction and the actions of the defendant, and applying the law as enunciated in State v. Meyers, supra, we hold that there was sufficient evidence for the jury to have reasonably concluded that the men on the porch, one of whom was the defendant, shared the specific intent to murder the victim during or after the drug transaction. This assignment of error is without merit.Hopson, 735 So.2d at 83-86 (footnotes in original).
Rec. Doc. 1.
Petitioner has failed to demonstrate that the state court's decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Accordingly, applying the AEDPA's deferential standard, this Court rejects petitioner's claim that there was insufficient evidence to support his conviction.
Evidence of Other Crimes
Petitioner claims that the trial court erroneously permitted the prosecution to introduce evidence of other crimes, i.e. evidence that fifteen bags of a substance believed to be marijuana were found in petitioner's car. In considering this claim on direct appeal, the Louisiana Fifth Circuit Court of Appeal held that the evidence was admissible pursuant to the res gestae exception of Louisiana evidentiary law. Hopson, 735 So.2d at 86-88. To the extent that petitioner is arguing that the state courts have misapplied state law, such a claim is not cognizable in a federal habeas corpus proceeding. Federal habeas courts "do not sit to review [a] state's interpretation of its own law." Jackson v. Anderson, 112 F.3d 823, 825 (5th Cir. 1997) (quotation marks omitted).
Rec. Doc. 1.
To the extent that petitioner is arguing that the introduction of the evidence violated his federal constitutional rights, he has failed to demonstrate that he is entitled to habeas relief on that basis. Even if the other crimes evidence had been erroneously admitted pursuant to state law, that alone would not necessarily justify relief. The United States Fifth Circuit Court of Appeals has noted:
In his federal application, petitioner appears to present his claim as one implicating the Due Process Clause. Rec. Doc. 1, supporting memorandum, p. 10. Although the state record filed with this Court is incomplete, see supra note 4, it appears that in the state courts petitioner may have presented the claim solely as one regarding the misapplication of state law rather than as a federal constitutional violation. Accordingly, this claim may not be exhausted. See Yohey v. Collins, 985 F.2d 222, 226 (5th Cir. 1993); see also Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001). The state, however, has not raised that defense. This Court need not determine whether the claim is in fact exhausted. The United States Fifth Circuit Court of Appeals has noted that 28 U.S.C. § 2254(b)(2) "allows a federal court, in its discretion, to deny habeas relief on the merits, regardless of whether the applicant has exhausted state remedies." Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998) (emphasis in original). Because this claim is meritless, the Court chooses to exercise its discretion to deny relief on the merits.
We will not grant habeas relief for errors in a trial court's evidentiary rulings unless those errors result in a "denial of fundamental fairness" under the Due Process Clause. The erroneous admission of prejudicial evidence will justify habeas relief only if the admission was a crucial, highly significant factor in the defendant's conviction.Neal v. Cain, 141 F.3d 207, 214 (5th Cir. 1998) (citations omitted); see also Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998) ("[O]nly when the wrongfully admitted evidence has played a crucial, critical, and highly significant role in the trial will habeas relief be warranted."). In light of the overwhelming evidence of petitioner's guilt, he has not demonstrated that the evidence regarding the "marijuana" found in his car was a crucial, critical, and highly significant factor in his conviction for second degree murder.
Confrontation Clause
Petitioner claims that his Sixth Amendment Confrontation Clause rights were violated because two potential witnesses, Kawanda Thompson and the co-perpetrator of the crime, were not available for cross-examination.
Kawanda Thompson did not testify at trial. However, she was mentioned during the following testimony of Officer Pamela B. Negrotto:
Q. [Assistant District Attorney Jerry Rome]: Did you, at any time, show that lineup to anyone else?
A. [Officer Pamela B. Negrotto]: I believe I did. Is it okay to refer to it?
Q.: Sure?
A.: Yes, later that same day I spoke to Kawanda Thompson and she positively identified photograph number three as one of the ones playing dice earlier that day.
Q.: And, again, you said she positively identified number three and number three is who?
A.: As Derrick Hopson.
Q.: I want to show you what I marked for identification purpose State's Exhibit 61 and ask you, can you identify that?
A.: Yes.
Q.: What is that?
A.: This is another witnesses lineup form on Kawanda Thompson when I showed photograph lineup number one to her.
Q.: What do your notes on that indicate?
A.: It indicates that she ID the suspect number three as the person playing dice prior to the shooting.
State Rec., Vol. IV of IV, transcript of June 2-5, 1998, p. 447-48. Petitioner is also concerned with the fact that during summation the prosecutor referenced the identification, stating, "Kawanda Thompson, picked him out in the lineup as being in the dice game that day." State Rec., Vol. IV of IV, transcript of June 2-5, 1998, p. 572.
Petitioner claims that his rights under the Confrontation Clause were violated because Thompson was not available for cross-examination. However, even if the references to Thompson's identification were inadmissible hearsay, an issue that this Court need not decide, that would not necessarily entitle petitioner to relief. The United States Fifth Circuit Court of Appeals has held:
Although the protections of the Confrontation Clause and the hearsay rule overlap, they are not co-extensive; the [Confrontation] Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause. The wrongful admission of hearsay evidence violates the Confrontation Clause only when the evidence was a crucial, critical or highly significant factor in the framework of the whole trial. In making this determination, we consider five general factors derived from the Supreme Courts opinion in Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970):
(1) whether the hearsay evidence was crucial or devastating;
(2) whether prosecutors misused a confession or otherwise engaged in misconduct;
(3) whether a joint trial or the wholesale denial of cross-examination was involved;
(4) whether the most important prosecution witness, as well as other prosecution witnesses, was available for cross-examination; and
(5) the degree to which the hearsay evidence is supported by indicia of [its] reliability.Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997) (quotation marks and citations omitted). The Fifth Circuit continued:
The determination of whether evidence is "crucial" or "devastating" recognizes that the erroneous admission of unreliable hearsay evidence may nonetheless be harmless in light of other evidence at trial; by examining whether hearsay was "crucial" or "devastating," the court seeks to determine whether the impermissible hearsay was sufficiently damaging to the defense to warrant reversal.
Id. at 447.
The Fifth Circuit has similarly noted:
[V]iolations of the Confrontation Clause are still subject to harmless error analysis. . . . To determine whether the error was harmless, we consider the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and of course, the overall strength of the prosecution's case.Hafdahl v. Johnson, 251 F.3d 528, 53 9-40 (5th Cir.) (quotation marks omitted), cert. denied, U.S. ___, 122 S.Ct. 629, 151 L.Ed.2d 550 (2001).
"Whether admission of hearsay evidence violated a defendant's Sixth Amendment right of confrontation is a mixed question of law and fact. . . ." Gochicoa, 118 F.3d at 445. Therefore, pursuant to the AEDPA, this Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The state district court rejected petitioner's claim regarding Kawanda Thompson, holding:
[P]etitioner alleges that his right to confrontation was abridged when Officer Negrotto testified that Kawanda Thompson, a witness who did not testify at trial, identified petitioner. This claim is without merit. Considering the weight of the identification evidence against petitioner, this reference by Officer Negrotto was not prejudicial. Petitioner fails to meet his burden of proof on the . . . claim.
Reasons for Judgment dated November 3, 2000; Rec. Doc. 1.
All together, the brief references to Thompson's identification comprised less than one page of a transcript consisting of hundreds of pages. Moreover, the only relevance of Thompson's statement was that it placed petitioner at the dice game. However, Pernell Simons and Cleveland Williams provided testimony at trial, subject to cross examination, which established that same fact. Far from being "crucial" or "devastating," the statement regarding Thompson's identification was merely cumulative and, even if erroneously admitted, ultimately harmless. Therefore, petitioner has failed to demonstrate that the state court's decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Accordingly, applying the AEDPA's deferential standard, this Court rejects petitioner's Confrontation Clause claim regarding Kawanda Thompson.
State Rec., Vol. III of IV, transcript of June 2-5, 1998, pp. 203-04 (Pernell Simons); State Rec., Vol. IV of IV, transcript of June 2-5, 1998, pp. 535-36 (Cleveland Williams).
Additionally, petitioner claims that his Confrontation Clause rights were violated because the co-perpetrator of the crime was not available for cross-examination. That claim is likewise without merit. The Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. "The Confrontation Clause of the Sixth Amendment applies to evidence actually disclosed at trial and a defendant has no right to confront a "witness' who provides no evidence at the trial." Shuler v. Wainwright, 491 F.2d 1213, 1224 (5th Cir. 1974); see also United States v. Sanchez, 988 F.2d 1384, 1392 (5th Cir. 1993) ("[T]he Sixth Amendment provides defendants a right to physically face and cross-examine witnesses who testify against them.") (emphasis in original); United States v. Daly, 756 F.2d 1076, 1081 (5th Cir. 1985) ("The right to confront a witness arises only when that witness inculpates a defendant."); McAllister v. Brown, 555 F.2d 1277, 1278 (5th Cir. 1977) (an individual not called to testify at trial "cannot be termed a "witness' against the defendant"). Because the co-perpetrator was not called to testify at trial and no statements allegedly made by him inculpating petitioner were admitted at trial, the co-perpetrator's unavailability for cross-examination did not violate the Confrontation Clause.
Ineffective Assistance of Counsel
Petitioner claims that his trial counsel was ineffective. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. If this Court finds that petitioner has made an insufficient showing as to either of these two prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Id.
Counsel's performance is deficient if it is "objectively unreasonable." United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). "[I]t is necessary to "judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Petitioner carries the burden of proof and must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Martheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985). Petitioner must prove that the conduct of counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002).
In order to prove prejudice, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
A claim of ineffective assistance of counsel is a mixed question of law and fact. See Pratt v. Cain, 142 F.3d 226, 230 (5th Cir. 1998). Therefore, this Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Petitioner claims that his counsel was ineffective when he failed to (1) subpoena Kawanda Thompson, (2) object to testimony regarding the identification made by Thompson, and (3) object to the prosecutor's reference during closing argument to the identification by Thompson.
The Court notes that petitioner also makes, without elaboration or argument, a statement that counsel was ineffective when he "failed to object when the district attorney made prejudicial comments concerning an unapprehended suspect." Rec. Doc. 1, supporting memorandum, p. 21. Although the state record filed with this Court is incomplete, see supra note 4, it appears that this claim may not have been raised to the state courts and, therefore, may not be exhausted. The state, however, has not raised that defense. As noted previously, 28 U.S.C. § 2254(b)(2) "allows a federal court, in its discretion, to deny habeas relief on the merits, regardless of whether the applicant has exhausted state remedies." Jones, 163 F.3d at 299 (emphasis in original).
Regarding that claim, petitioner has failed to identify a basis on which counsel could have objected to the prosecutor's reference to the fact that there were two perpetrators, a fact discussed at length during the trial. Moreover, this Court knows of no basis for such an objection. "Failure to raise meritless objections is not ineffective lawyering; it is the very opposite." Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). Therefore, petitioner has not demonstrated that counsel's performance was deficient or that any prejudice resulted. Accordingly, even if that claim is not exhausted, this Court chooses to exercise its discretion to deny the claim on the merits.
The state district court rejected petitioner's claim, holding:
[Petitioner] argues his trial counsel was ineffective for failing to secure Kawanda Thompson's presence at trial, and for failing to object to Officer Negrotto's testimony that Thompson identified him and to the prosecutor's reference to the identification in closing argument. Petitioner fails to meet his burden of proof on this claim because he has not demonstrated that counsel's performance was objectively unreasonable and that the result would have been different but for the errors he alleges.
Reasons for Judgment dated November 3, 2000; Rec. Doc. 1.
As to petitioner's complaint regarding the failure of his counsel to subpoena Kawanda Thompson to testify at trial, "complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what the witness would have testified are largely speculative." Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (citing Sayre v. Anderson, 238 F.3d 631, 635-36 (51h Cir. 2001)). To show the prejudice required to support an ineffective assistance claim premised on the failure to call a witness, a petitioner "'must show not only that [the] testimony would have been favorable, but also that the witness would have testified at trial.'" Evans, 285 F.3d at 377 (quoting Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
Petitioner has presented nothing in support of his bald assertions regarding the failure to subpoena Kawanda Thompson. He has not provided affidavits from Thompson or any other corroboration that she would have testified in a manner consistent with his version of the facts or, for that matter, that she would have testified at trial at all. Petitioner has, therefore, failed to establish either that counsel was deficient or that prejudice resulted from the failure to subpoena Thompson.
Regarding counsel's failure to object to Officer Negrotto's and the prosecutor's references to the identification made by Thompson, that failure cannot be considered prejudicial. In conjunction with petitioner's related Confrontation Clause claim, this Court determined that the references to Thompson's identification were not "crucial" and "devastating." That finding necessarily precludes a finding that the statements were prejudicial under Strickland. Gochicoa v. Johnson, 238 F.3d 278, 286 (5th Cir. 2001). "Because the hearsay is not sufficiently damaging to warrant reversal as a Confrontation Clause violation (meaning any error was harmless), it is not sufficiently damaging when re-framed as ineffective assistance of counsel — it remains harmless." Id. Having determined that petitioner was not prejudiced, this Court need not make a determination as to whether counsel's performance was deficient. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
Petitioner has failed to demonstrate that the state court decision denying his ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Accordingly, applying the AEDPA's deferential standard, this Court rejects petitioner's claim that his counsel was ineffective.
RECOMMENDATION
Accordingly, IT IS RECOMMENDED that the petition of Derrick Hopson for federal habeas corpus relief BE DISMISSED WITH PREJUDICE.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Services Auto. Ass'n., 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).