Opinion
3-03-CV-2667-K.
July 15, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2241. Petitioner is currently confined on federal drug charges, but attacks a state drug conviction in this action.
Statement of the Case: Petitioner pled not guilty and was convicted by a jury of possession with intent to deliver more than 400 grams of heroin in Cause No. F-00-56933-U. He was sentenced by the court to 15 years in the penitentiary.
Petitioner's conviction was affirmed by the Fifth Court of Appeals at Dallas in Ibarra v. State, No. 05-01-01826-CR, 2002 WL 1551873 (Tex.App.-Dallas July 16, 2002, no pet.) (not selected for publication). He did not file a petition for discretionary review.
Ibarra filed his application for habeas corpus relief pursuant to Texas Code of Criminal Procedure art. 11.07, on March 4, 2003.Ex Parte Ibarra, Application No. 56,410-02. On October 8, 2003, the Texas Court of Criminal Appeals denied his application without written order on the finding of the trial court without a hearing. See Application No. 56,410-02 at cover.
Petitioner had previously filed an application for writ of mandamus which the Court of Criminal Appeals denied without written order on September 3, 2003. Ex Parte Ibarra, 56,410-01.
Petitioner filed the instant federal habeas petition on October 15, 2003. In response to the court's show cause order Respondent filed his answer together with copies of Ibarra's state court records. Petitioner filed a reply to the answer on April 5, 2004. Findings and Conclusions: Review of Petitioner's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or 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." § 2254(d)(1) and (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
Ibarra has also filed additional pleadings asking for appointment for an expert to analyze the signature appearing on the signed confession, alleging that the same was forged. This claim, raised for the first time in his § 2254 petition, is unexhausted. Moreover, it is contrary to his own pre-trial testimony. (See Reporter's Record Vol. 2 at 84-85).
Petitioner first contends that his confession was coerced and involuntary. At the pretrial suppression hearing, the trial court was called upon to determine the voluntary nature of his confession. The court considered the testimony of the officer to whom Ibarra confessed as well as that of Ibarra himself, and at the conclusion of the hearing denied the motion to suppress Petitioner's signed statement. (Reporter's Record Vol. 2 at 25-99); see also Ibarra v. State, 2002 WL 1551873. The weight and credibility to be afforded to the conflicting testimony presented was reserved to the trial court. Although the issue of voluntariness is a mixed question of law and fact, the underlying facts are entitled to a presumption of correctness. § 2254(e)(1). Ibarra has not rebutted the presumption by clear and convincing evidence and the historical facts found by the Texas courts foreclose relief on these grounds.
In his second ground for relief Petitioner alleges that he was the victim of an illegal search and seizure in violation of the Fourth Amendment. Aside from the fact that the testimony of Officer Ragsdale indicates otherwise, and the fact that the court, having considered the testimony at the suppression hearing, denied his motion to suppress on this ground as well, merits review of this claim is foreclosed by the United States Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976).
In his third ground for relief Ibarra alleges that he was not given a Miranda warning before he was arrested and was not provided the assistance of counsel when he requested the same, thus causing him to sign a confession. Ibarra's self-serving and conclusory allegation cannot overcome the presumption of correctness to the findings of the Court of Criminal Appeals that his privilege against self-incrimination was not violated. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288, n. 3 (5th Cir. 1980)).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
In addition to the Court of Criminal Appeals determination in the art. 11.07 application, the Fifth Court of Appeals previously found that Petitioner was advised twice of his rights before he signed the statement. Ibarra v. State, 2002 WL 1551873.
In eight separate instances Petitioner claims that he was denied effective assistance of counsel by his trial attorney. The representation afforded by an attorney is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment (Id. at 690, 104 S.Ct. at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id. at 698, 104 S.Ct. at 2069. Moreover, in order to be entitled to relief Ibarra must show that the Court of Criminal Appeals' denial of his ineffective assistance of counsel claim was an objectively unreasonable application of federal law. See Yarborough v. Gentry, ___ U.S. ___, 124 S.Ct. 1 (2003).
Petitioner contends that his trial counsel erred by failing to object to the trial court's erroneous conclusion that Ibarra's confession was voluntary and admissible. The record shows that his attorney sought to suppress the confession and preserved the objection for appellate review. (Reporter's Record Vol. 2 at 25). Nothing else is required.
Petitioner asserts that his counsel failed to investigate his case properly. This claim is wholly conclusory. Under pre-AEDPA law the Fifth Circuit required that habeas petitioner identify with specificity what a properly conducted investigation would have revealed and how it would have altered the outcome of the trial. See e.g. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Ibarra has satisfied neither of these requirements and therefore cannot establish that the Court of Criminal Appeals unreasonably applied the Strickland standards to Petitioner's failure to investigate claim.
Ibarra's assertions that his trial attorney failed to object to the admissibility of tangible evidence and to his confession are squarely refuted by the record.
Next Petitioner faults his attorney's strategic decision not to contest the voluntariness of his confession before the jury. In responding to this issue in the context of the art. 11.07 application, his trial attorney stated that he concluded that any sentence imposed would be favorably affected by the fact that Ibarra did not testify in the jury's presence. See Application No. 56,410-02 at 110.
Absent Petitioner's testimony before the jury there was no evidence that his statement was coerced or otherwise involuntary. Given the fact that Ibarra's credibility had previously been rejected by the judge who heard the motion to suppress, that he would have been subject to impeachment with respect to his prior federal drug conviction, and the fact that the trial judge, whom Ibarra elected to assess punishment, may have imposed a higher sentence within the range of punishment had the judge believed that he testified falsely in the jury's presence, counsel's strategic decision to advise him not to testify at the guilt-innocence phase of trial was not inconsistent with the quality of representation guaranteed by the Sixth Amendment.
Petitioner alleges that counsel was deficient because he failed to call witnesses to testify as to Plaintiff's character and reputation. Petitioner has not produced any affidavits of such persons setting out matters on which they were competent to testify and that they would have been available to testify on the date of the trial. See e.g. Alexander v. McCotter, 775 F.2d 595, 602-03 (5th Cir. 1985). His conclusory claim fails to present a cognizable claim under pre-AEDPA law of the Fifth Circuit. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
Finally, Petitioner alleges that his trial counsel was ineffective because he withdrew from the case without informing Ibarra of his right to appeal. Petitioner has cited no United States Supreme Court case law holding that his attorney was constitutionally required to give such notice. Moreover, Petitioner filed a timely appeal, and therefore can show no prejudice due to any alleged lack of notice.
Petitioner also asserts that his appellate counsel was ineffective because he filed a frivolous appellate brief that failed to raise Fourth, Fifth, Sixth and Fourteenth Amendment issues and did not inform Ibarra that he had been appointed before the brief was filed. A claim for ineffective assistance of appellate counsel is likewise adjudicated under the Strickland test. Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 764 (2000).
Although a petitioner may state a colorable claim of ineffective assistance of appellate counsel based on counsel's failure to raise a particular claim on appeal, an attorney is not required to raise every meritorious claim on appeal, and a petitioner must still satisfy the Strickland test. Smith, 528 U.S. at 287-88, 120 S.Ct. at 765-66. Here, Ibarra has not identified any meritorious issues that were not raised on appeal, thus failing to show either error or prejudice. Neither is counsel required to consult with his client on appeal. E.g. Hooks v. Roberts, 480 F.2d 1196, 1198 (5th Cir. 1973); see also Thomas v. Cockrell, 2004 U.S. Dist. LEXIS 6781 *19 (W.D. Tex. April 14, 2004) (citing Hooks for the propositionsupra).
Finally, Ibarra contends that the attorney who filed a motion for a new trial erred in filing a frivolous motion. Petitioner has failed to show that there were any meritorious issues that could have been raised in a motion for new trial and has therefore failed to show that he prejudiced by their alleged omission.
RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied and dismissed.
A copy of this recommendation shall be transmitted to Petitioner and counsel for Respondent.