Opinion
Civil Action No. 4:02-CV-163-Y
July 22, 2002
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 Title 28, United States Code, Section 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:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254.
B. PARTIES
Petitioner Richard Earl Johnson, TDCJ-ID #869624, is in the custody of the Texas Department of Criminal Justice, Institutional Division and presently incarcerated in the Price Daniel Unit in Snyder, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID).
C. PROCEDURAL HISTORY
Johnson was indicted in Cause #0706607D in the 372nd Judicial District Court of Tarrant County, Texas for the offense of driving while intoxicated (felony repetition) on or about September 16, 1998. (Clerk's R. 3-4). His indictment included enhancement and habitual offender notices. (Clerk's R. 3-4). Johnson pleaded not guilty to the offense of driving while intoxicated, and pleaded "not true" to the enhancement and habitual offender paragraphs. On April 8, 1999, the jury found Johnson guilty of the charged offense and further found the enhancement and habitual offender notices to be true. (6 Rep. R. 89). The jury assessed a punishment of thirty (30) years in the TDCJ-ID. (Clerk's R. 64). Johnson's conviction was affirmed on direct appeal. Johnson v. State, No. 2-99-189-CR (Tex.App.-Fort Worth Dec. 21, 2000, pet. ref'd).
Johnson has filed one state application for writ of habeas corpus, which was denied by the Texas Court of Criminal Appeals without written order on January 30, 2002. Ex parte Johnson, No. 51,355-01 (Tex.Crim.App. Jan. 30, 2002). Johnson filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, on February 19, 2002.
For purposes of this habeas corpus proceeding, the federal petition is deemed filed on the date the petitioner executed his petition and presumably deposited it in the prison mailing system. Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998).
D. ISSUES
Johnson presents the following as grounds for relief:
1. The trial court erred in admitting hearsay that denied Johnson his constitutional right to confront the witnesses against him.
2. Counsel was ineffective in failing to investigate possible juror misconduct.
3. The conviction was obtained using evidence seized pursuant to an unlawful arrest.
E. RULE 5 STATEMENT
Respondent believes Petitioner has sufficiently exhausted available state remedies on the issues presented and does not move for dismissal on this ground.
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
The standards codified in 28 U.S.C. § 2254 guide our review of a petition for writ of habeas corpus filed by a state prisoner:
(d) An application for 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 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.28 U.S.C. § 2254(d). See also Lindh v. Murphy, 521 U.S. 320, 117 S.Ct 2059, 138 L.Ed.2d 481 (1997). Relief is authorized if a state court arrives at a conclusion opposite to that reached by the Supreme Court 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, 120 S.Ct. 1495, 1523, 1518, 146 L.Ed.2d 389 (2000). Relief is also available if the state court identifies the correct legal principle but unreasonably applies that principle to the facts of the prisoner's case or reaches a decision based on an unreasonable factual determination See 28 U.S.C. § 2254(d)(1)-(2); Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere disagreement with the state court is not enough: The standard is one of objective reasonableness. Montoya, 226 F.3d at 404. State court determinations of underlying factual issues are presumed correct, and the petitioner has the burden to rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
G. DISCUSSION
1. Hearsay
Johnson contends that the trial court erred in permitting one of the police officers involved in Johnson's arrest to testify about portions of her written report that reflected observations made by another police officer. Officer Carline Cepak, a member of the Fort Worth Police Department DWI complaint response unit, was called to the scene of Johnson's arrest. Arresting officer Jeff Lucio transported Johnson to the county jail as Cepak followed in her own vehicle. (4 Rep. R. 142). Cepak testified that she believed Johnson to be intoxicated because of the smell of an alcoholic beverage and Johnson's impaired use of his mental and physical faculties as she spoke with him. (4 Rep. R. 145). On redirect examination, and over hearsay objections by defense counsel, Cepak was permitted to testify that her written report reflected that an open container (of beer) had been observed at the scene. (4 Rep. R. 163-64). On recross examination, Cepak admitted she had no personal knowledge about beer being found in the vehicle. (4 Rep. R. 167).
An intoxilyzer test was not performed because Cepak had safety concerns about putting Johnson in a room with the civilian employee who operated the intoxilyzer equipment. (4 Rep. R. 144).
What constitutes hearsay in a state court trial is governed by state law. Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997). Furthermore, the federal courts may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling violates a specific federal constitutional right or otherwise renders the trial fundamentally unfair. Id. at 446. A fundamentally unfair trial violates the Fourteenth Amendment right to due process. Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994). A trial is deemed unfair when it has been "largely robbed of the dignity due a rational process." Houston v. Estelle, 569 F.2d 372, 383 (5th Cir. 1978) (quoted in Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985)).
Although the protections afforded by the Confrontation Clause and the hearsay rule overlap, they are not co-extensive. Ohio v. Roberts, 448 U.S. 56, 62-65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Consequently, the admission of an out-of-court statement can pass constitutional scrutiny if the declarant is unavailable and the statement is shown to be reliable. Idaho v. Wright, 497 U.S. 805, 814-15, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Hafdahl v. Johnson, 251 F.3d 528, 539 (5th Cir.), cert. denied, 122 S.Ct. 629 (2001).
But even if testimony is subject to exclusion under the Confrontation Clause, violations of the Confrontation Clause are subject to harmless error analysis. See Hafdahl, 251 F.3d at 539-40 (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). To determine whether any error was harmless, the court considers the importance of the testimony to 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. Id. See also Cupit, 28 F.3d at 537 (finding admission of hearsay violates Confrontation Clause only if crucial, critical or highly significant factor in framework of whole trial)
Regardless of any constitutional violation in its admission, Cepak's testimony was harmless beyond reasonable doubt. Lucio was not an unavailable witness, and both he and Cepak were present and subjected to cross-examination without any material limitations during the trial. Before Cepak testified about the contents of her report, Lucio had already testified that he observed Johnson step out from the driver's side of the vehicle, Johnson stumbled and swayed as he walked, Johnson smelled of alcohol, and Johnson's eyes were glassy. (4 Rep. R. 29). Johnson was belligerent and used profanity while talking with Lucio, which Lucio believed was behavior indicative of intoxication. (4 Rep. R. 31-32). Lucio also testified that he observed an open container of beer sitting in a cupholder at the front of the vehicle and the container was still cool to the touch, but admitted on cross-examination that this observation was not in his written report. (4 Rep. R. 35, 85). Johnson refused to perform any field sobriety tests; however, he and told Lucio he had consumed a twelve-pack of beer over the course of the day. (4 Rep. R. 38-40).
Johnson has not established a Confrontation Clause violation that merits relief, nor has he demonstrated that his trial was rendered fundamentally unfair because of Cepak's testimony.
2. Ineffective Assistance of Counsel
Johnson complains that his trial counsel, Christopher Kuhner, was ineffective in failing to investigate alleged juror misconduct and develop the record in support of a motion for new trial. At the conclusion of Johnson's trial, the trial court notified the parties of the following:
THE COURT: All right. Prior to evidence being presented at the punishment phase of these proceedings this morning, Juror 17, Edwin Lee Richardson, contacted Deputy Pettyjohn and told him that he felt real bad, words to that effect, he was having second thoughts about his decision to vote guilty, that he may have a reasonable doubt now or words to that effect, and asked to talk to the Judge.
I advised Deputy Pettyjohn that if the juror mentioned it again, to tell him the Court is not allowed to converse with jurors while the trial is in progress, that if he wanted to talk to the Judge after the trial, to do so, but I was not going to talk to the juror at that time.
According to Deputy Pettyjohn, Mr. Richardson didn't ask to speak to the Judge again.
I'm advising both counsel of that communication at this time, and if either of you wish to speak to Mr. Richardson, under the circumstances, I will make his address and phone number available, and there is any issues which give legal merit to a Motion for New Trial, the Court will consider them at that time.
But based upon the fact that the Court had polled the juror — jury and Mr. Richardson had indicated, as all other jurors, that it was his independent verdict under the Charge, the Court believes that based on the Rules of Evidence which deal with jury deliberations, the Court was not authorized nor properly should have independently spoken to a juror while the trial was in progress, but felt the obligation to advise both counsel of the communication to the bailiff at this time, and so you are advised.
(6 Rep. R. 95-96). The record does not indicate whether Kuhner took advantage of the opportunity to contact Richardson, but according to Johnson, Kuhner advised him that filing a motion for new trial on grounds of juror misconduct would be meritless. Kuhner refused to file such a motion, but did assist Johnson by preparing a motion for new trial that Johnson could, and did, file pro se. (Clerk's R. 70). The motion was overruled by operation of law. TEX. R. App. P. 21.8(c). Johnson asserts that Kuhner should have filed the motion for new trial, should have investigated and procured an affidavit from juror Richardson to advance Johnson's arguments of juror misconduct, and should have requested a hearing on the motion.
Johnson also alleges that counsel should have requested a hearing at the time he was notified about Richardson's comments to determine whether Richardson should be disqualified from sitting at the punishment phase. The trial court did not inform counsel about Richardson's comments until the jury was discharged and sentence was imposed, but did advise counsel he would consider any issues in support of a new trial. (6 Rep. R. 93-96).
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. Amend. VI. The two-pronged standard by which a claim of ineffective assistance of counsel is measured is set forth in Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The first prong of Strickland requires the defendant to show that counsel's performance was deficient. Id. at 698, 104 S.Ct. at 2064, 80 L.Ed.2d 674. The defendant must show that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674. The second prong requires the defendant to show prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d 674. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d 674. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d 674.
Regardless of whether defense counsel should have participated more actively in Johnson's efforts to obtain post-trial relief. Johnson demonstrates no actual prejudice. There is no affidavit from Richardson to clarify his statements to the bailiff, and the most the record indicates is that this juror experienced an episode of "second thoughts" about his decision that apparently subsided before conclusion of the proceedings as Richardson made no further complaint to the bailiff, and when polled at both the guilt-innocence and punishment phases, indicated that the jury's decisions reflected his independent verdict. (5 Rep. R. 33; 6 Rep. R. 91). These circumstances would not suffice to support a successful motion for new trial under Texas law, nor would it appear to be admissible had the trial court held an evidentiary hearing on the question. Cf. Buxton v. Lynaugh, 879 F.2d 140, 147 (5th Cir. 1989). See generally TEX. R. APP. P. 21.3 (listing grounds for new trial); TEX. R. EVID. 606 (governing role of juror as witness).
Rule 606(b) of the Texas Rules of Evidence provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
TEX. R. EVID. 606(b). The state courts find that this limitation on juror testimony in post-trial proceedings is intended to encourage open discussion among jurors during deliberations, promote the finality of judgments, and protect jurors from harassment by unhappy litigants seeking grounds for a new trial. Hicks v. State, 15 S.W.3d 626, 630-631 (Tex.App.-Houston [14 Dist.] 2000, pet. ref'd). See also Hines v. State, 3 S.W.3d 618 (Tex.App.-Texarkana 1999, pet. ref'd). Federal law is similar. See, e.g., U.S. v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984) (observing that courts traditionally have resisted inquiring into jury thought processes); Maldonado v. Missouri Pacific Ry. Co., 798 F.2d 764, 770 (5th Cir. 1986) (noting that subjective thought processes of jurors generally does not amount to "jury misconduct" supporting new trial). See generally FED. R. EVID. 606(b).
Johnson fails to demonstrate that the state courts have acted unreasonably in denying relief on his claim of ineffective assistance of counsel.
3. Unlawful Search and Seizure
Johnson asserts that his conviction is the product of evidence obtained after he was arrested without probable cause. In the state courts, Johnson advanced the argument that the Texas Constitution required that most of the state's evidence be suppressed. To the extent Johnson his renewing his challenges under state constitutional law, his complaint must fail because matters of purely state law are not cognizable in federal habeas proceedings. See Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).
Johnson fares no better if his complaint is construed as a challenge under the Fourth Amendment. Generally, a federal court does not have the authority to grant habeas corpus relief for Fourth Amendment claims unless the petitioner was denied the opportunity to fully and fairly litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). Johnson does not assert that he has been denied the opportunity to fully and fairly litigate his Fourth Amendment claim. Where no such claim is made, federal habeas corpus may not be granted to a state prisoner on the basis of the introduction at trial of evidence seized in an unconstitutional search and seizure. Bell v. Lynaugh, 828 F.2d 1085, 1091-92 (5th Cir. 1987).
Furthermore, the facts illustrate that Johnson was not denied the opportunity to litigate his claim in the state courts. The matter was first raised in a pretrial motion to suppress. The trial court held a hearing on the issue, and determined that the evidence was admissible. Johnson next raised this claim on direct appeal. The Second Court of Appeals found that there were no Fourth Amendment violations, and accordingly, affirmed the trial court's decision to admit the evidence. Johnson v. State, No. 2-99-189-CR, slip op. at 9. The Texas Court of Criminal Appeals refused to hear the complaint on petition for discretionary review. Johnson's claim of trial court error in denying the motion to suppress evidence is barred from federal habeas corpus relief under Stone v. Powell, 428 U.S. at 494.
RECOMMENDATION
The Petition for Writ of Habeas Corpus should be denied.
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 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 hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until August 13, 2002. Pursuant to Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990) and Douglass v. United ServicesAuto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until August 13, 2002 to serve and file, not merely place in the mail, 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, the 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.