Opinion
CIVIL ACTION NO. 4:03-CV-0896-A
December 18, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Aaron Gene Jefferson, TDCJ-ID #1099200, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Lovelady, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1999 Jefferson was charged by indictment in Palo Pinto County with delivery of a controlled substance, namely cocaine, in an amount of more than one gram but less than four grams. (Trial Court Clerk's R. at 1.) The indictment also included enhancement paragraphs alleging that the offense occurred within 1,000 feet of a school and a prior felony conviction for unauthorized use of motor vehicle. (Id.) Jefferson's jury trial commenced on April 13, 2002. Based on the testimony and other evidence adduced at trial, on April 16, 2002, a jury found Jefferson guilty of the offense as charged in the indictment, and it found that he committed the offense within 1,000 feet of a school. (Id. at 29.) Thereafter, the trial court assessed Jefferson's punishment at 30 years' confinement. (Id. at 29-31.) On February 13, 2003, in a published opinion, the Eleventh District Court of Appeals affirmed the trial court's judgment. Jefferson v. State, 99 S.W.3d 790 (Tex.App.-Eastland 2003, pet. ref d). In turn, the Texas Court of Criminal Appeals refused Jefferson's petition for discretionary review on June 4, 2003. PDR No. 0564-03. Jefferson did not seek writ of certiorari. (Federal Pet. at 3.) The instant federal petition challenging his conviction was filed in the United States District Court for the Northern District of Texas, Dallas Division, on July 20, 2003. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when the petition is delivered to prison authorities for mailing). By order dated August 22, 2003, the Dallas Division transferred this case to the Fort Worth Division.D. ISSUES
In two grounds, Jefferson alleges that (1) the trial court erred in denying his motion for directed verdict in that the state failed to corroborate the testimony of the confidential informant as required by Article 38.141 of the Texas Code of Criminal Procedure, and (2) the trial court comitted fundamental error in submitting its charge to the jury by misstating the law contrary to Article 38.141. (Federal Pet. at 7.)
E. RULE 5 STATEMENT
Dretke believes that Jefferson has sufficiently exhausted his state remedies with regard to his first claim, but argues that Jefferson's second claim is unexhausted because he did not raise the claim in his petition for discretionary review and is procedurally barred. (Resp't Answer at 6.) Nevertheless, the merits of both claims are considered herein. 28 U.S.C. § 2254(b)(2) (providing that application for habeas relief may be denied on merits, notwithstanding failure of applicant to exhaust state remedies).
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings 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, as determined by the United States Supreme Court, 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 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, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Motion for Directed Verdict
Under his first ground, Jefferson contends the trial court erred in denying his motion for a directed verdict in that the state failed to corroborate the testimony of the confidential informant as required by Article 38.141 of the Texas Code of Criminal Procedure. (Federal Pet. at 7; Pet'r Mem. in Support at 2-7.) Article 38.141, entitled "Testimony of Undercover Peace Officer or Special Investigator," provides, in relevant part:
(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.
TEX. CODE CRIM. PROC. ANN. § 38.141(a)-(b) (Vernon Supp. 2003).
Jefferson argues that the only evidence connecting him with the commission of the offense was the "uncorroborated testimony of a paid, non-peace officer, confidential informant," which is insufficient to prove his guilt beyond a reasonable doubt. (Pet'r Mem. in Support at 4.) The Eleventh Court of Appeals considered Jefferson's claim and concluded that the testimony of Officer Price with the Cross Timbers Narcotics Task Force in conjunction with an audio taped recording of the drug transaction was sufficient to "connect" Jefferson to the commission of the offense for purposes of Article 38.141. Jefferson, 99 S.W.3d at 792-93. Jefferson contends that he is entitled to federal habeas relief because his case "illustrates the need for a federal court to review [the] state's corroboration of confidential informant's testimony for rationality and to avoid manifest injustice." Dretke, on the other, contends Jefferson is not entitled to federal relief because he has failed to meet his burden of proof under § 2254(d)(1)-i.e., to show 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 or that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. (Resp't Answer at 10.)
The parties do not appear to dispute the underlying facts of the case. Jefferson is therefore entitled to relief only if he can demonstrate that the state court's adjudication of his claim was "contrary to" or an "unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1); Price v. Vincent, 124 S.Ct. 1848, 1850 (2003); Burgess v. Dretke, No. 01-11287, 2003 WL 22597719, at* 4-5 (5th Cir. Nov. 11, 2003). This he has failed to do. The Supreme Court has never directly addressed the issue raised by Jefferson, and he relies solely on state statutory provisions and case law in support of his claim. Jefferson alludes to the Due Process Clause to the extent it requires the state to prove his guilt beyond a reasonable doubt. However, assuming article 38.141 is applicable to Jefferson's case, whether the requirements of the state statutory provision were met is a matter of state law. Thus, the state appellate court's decision that the confidential informant's testimony was sufficiently corroborated by the officer's testimony and the recording of the drug transaction "stands" in the absence of a showing by Jefferson that his constitutional rights were violated. See Magouirk v. Warden, Winn Corr. Ctr., 237 F.3d 549, 553 (5th Cir. 2001).
Dretke makes the argument that because the confidential informant in this case had not been a confidential informant for the police for over three and half years at the time of trial, her testimony was given as that of an accomplice to the crime, and not that of a confidential informant. (Resp't Answer at 11-12.) Nevertheless, it is not necessary in the context of his case to make the distinction.
3. Jury Charge
Under his second ground, Jefferson contends that "[a]lthough no proper objection was lodged at trial, the trial court committed fundamental error in submitting its charge to the jury by misstating the law contrary to Article 38.141 "-i.e., by omitting a jury instruction on the requirements of Article 38.141. (Trial Clerk's R. at 24-28.) The state appellate court, relying on state law precedent, acknowledged that Jefferson had not objected to the charge as given and conducted a review under the "egregious harm standard." Having done so, the court held that Jefferson had not shown "egregious harm" as a result of the trial court's omission. See Jefferson, 99 S.W.3d at 793.
Dretke argues that this claim is procedurally barred and must be dismissed. (Resp't Answer at 12-13.) Under Texas law, an objection to the jury charge is deemed forfeited unless a contemporaneous objection is made at the time the charge is prepared. See Soria v. Johnson, 207 F.3d 232, 242-43 (5th Cir. 2000). The "contemporaneous objection" requirement, an independent and adequate state procedural rule, can foreclose review of a claim in state court. See Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977); Duncan v. Cain, 278 F.3d 537, 541 (5th Cir.), cert. denied, 537 U.S. 829 (2002). Where the state court relies on this rule in deciding not to review a claim, the claim is likewise immune from federal review. See Duncan, 278 F.3d at 541. The Eleventh Court noted that there was no "proper objection" to the charge as given in this case, but it reviewed the claim under an "egregious harm standard," an apparent exception to the requirement of a contemporaneous objection under state law. Jefferson, 99 S.W.3d at 793. Because Jefferson is not entitled to relief, the issue of whether the claim is procedurally defaulted is not addressed.
As in his previous claim, Jefferson has failed to show that the state court's adjudication of this claim was either contrary to clearly established federal law, or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). Again, Jefferson relies solely on state statutory provisions and case law in support of his claim. Moreover, improper jury instructions in state criminal trials do not generally form the basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). The relevant inquiry on claims of improper jury instructions by a state court is not whether there was prejudice to the petitioner or whether state law was violated, but whether there was prejudice of constitutional magnitude. See Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002). Thus, the relevant inquiry is whether the failure to give an Article 38.141 instruction by itself so infected the Jefferson's trial that the resulting conviction violates due process. See id. at 764-65. The error did not rise to that level in this case. The evidence of Jefferson's guilt was so overwhelming that any error committed by the trial court in omitting such an instruction was harmless. See United States v. Green, 293 F.3d 886, 890 (5th Cir. 2002), cert. denied, 123 S.Ct. 1783 (2003). Accordingly, the state court's decision stands. See Magouirk, 237 F.3d at 553.
II. RECOMMENDATION
Jefferson's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until January 8, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en bane op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 8, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.