Opinion
CIVIL ACTION NO. 3:01-CV-2121-H
January 7, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and the District Court's order filed on November 12, 2003 reassigning the petition, the subject cause has been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations 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 by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Morris W. Jackson ("Jackson" or "Petitioner") is confined at the Clements Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Amarillo, Texas. Respondent is the Director of TDCJ-CID. Statement of the Case: Jackson entered a plea of not guilty to the offense of theft of property in the amount of $100,000 but less than $200,000 alleged in the indictment returned in cause number 2336OCR. The jury found Petitioner guilty of the lesser included offense of theft of an amount of $20,000 or greater but less than $100,000 and assessed punishment at forty-three years in the penitentiary.
Jackson effected a direct appeal and on February 9, 2000 the Court of Appeals affirmed his conviction. Jackson v. State, 12 S.W.3d 836 (Tex.App.-Waco, 2000, pet. ref d). Petitioner's petition for discretionary review was refused by the Texas Court of Criminal Appeals on July 26, 2000. Jackson v. State, PDR No. 1008-00. Thereafter he filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07. Ex. Parte Jackson, Appl. No. 19, 014-02. The Texas Court of Criminal Appeals denied Jackson's application without written order on the findings of the trial court on September 19, 2001. See Ex Parte Jackson at cover.
In response to Jackson's petition and this court's show cause order Respondent filed an answer together with copies of Petitioner's prior state proceedings on March 11, 2002. Petitioner filed a traverse on April 2, 2002.
Findings and Conclusions:
Petitioner's claims have previously been adjudicated on the merits in state court. See Ex Parte Jackson. Therefore, this court may not grant habeas unless Jackson shows that
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 proceeding, § 2254(d).
Jackson first complains that his assertion of his Miranda rights and subsequent silence was used to impeach his exculpatory story during trial. In its findings of fact, on which the Texas Court of Criminal Appeals relied in denying Petitioner's art. 11.07 habeas application, the trial court found that "[t]he State did not use [Petitioner's] post-silence arrest to impeach him at trial." Ex Parte Jackson at 64. Jackson argues that this claim is governed by the United States Supreme Court's decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976). In Doyle, after the defendant exercised his right not to make a statement after being given a Miranda warning, the prosecution proceeded to impeach the defendant's exculpatory testimony at trial by showing that he was silent when given an opportunity to provide an exculpatory statement. In Jackson's case it is clear that he did not testify at trial. In fact he rested immediately after the state concluded its case-in-chief (See Reporter's Record v. 7 at 114-115). The record confirms the accuracy of the trial court's finding of fact on this ground.
Jackson next alleges that there was insufficient evidence to convict him of theft. The sufficiency of the evidence was raised in the context of his direct appeal and was reviewed and decided by the Tenth Court of Appeals. The opinion summarizes the evidence and the court correctly identifies the applicable standard, explicitly citing the United State Supreme Court's decision in Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89 (1979), and found that evidence sufficient. In his subsequently filed art. 11.07 application, the trial court found that "there was some evidence presented at his trial to support [Jackson's] conviction." Ex Parte Jackson at 64. While this does not constitute an accurate statement of the standard set out in Jackson v. Virginia, supra, relief cannot be granted unless Petitioner can show that the Court of Criminal Appeal's denial on this ground was an unreasonable application of United States Supreme Court law. § 2254(d)(1). Despite the cursory treatment given to this claim in his art. 11.07 application, the findings made by the Tenth Court of Appeals in its reported opinion preclude a determination under § 2254(d)(1) or (2), thereby foreclosing relief on this ground.
The court also noted that in Barnes v. United States, 412 U.S. 837, 846, 93 S.Ct. 2357, 2363 (1973), the Court held that an inference of guilt could be drawn from the fact of a defendant's unexplained possession of recently stolen property.
In his third ground for relief Petitioner claims that he was not given ten days notice after the indictment was amended. The ten day notice provision is a matter of state law only and does not state a cognizable basis for federal habeas relief. More to the point is the fact that the indictment was not amended, although a portion was stricken. See, e.g., Ex Parte Jackson at 004. The indictment charged Jackson with commission of a second degree felony. See TEX. PEN. CODE ANN. § 31.03(e)(6) (Vernon 2003). However, based on the evidence presented the court charge was limited to a third degree felony, a lesser included offense. § 31.03(e)(5); see also Ex Parte Jackson at 015. Jackson was given fair notice of the charge and the fact that he was convicted of a lesser included offense fails to raise a cognizable claim for relief.
In his final ground for relief Jackson attacks the court's jury charge in the punishment phase of his trial. The state habeas court did not explicitly rely on a procedural bar in addressing this claim. Therefore Respondent's argument that consideration of this ground is procedurally barred is without merit. However, in order to present a cognizable claim, a petitioner must show that the omission of an instruction from a court's charge "so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973)). Petitioner has failed to set out the instruction(s) he claims should have been submitted, nor does he cite any Supreme Court authority which he relies on. To the contrary, the trial court's instructions advised the jury that he was presumed innocent and that it could not consider the fact that he chose not to testify in the course of its deliberations. Ex Parte Jackson at 017-18. Relief for this ground should be denied.
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 the Petitioner and to counsel for Respondent.