Opinion
7:99-CV-157-R
August 20, 2002
MEMORANDUM OPINION AND ORDER
Came on to be considered the papers and pleadings filed in this action and the Court finds and orders as follows:
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by an inmate confined in the Wynne Unit of the Texas Department of Criminal Justice in Huntsville, Texas. On April 2, 1996, upon a plea of not guilty, Johnson was tried by jury and convicted for the offense of aggravated sexual assault. Petition ¶¶ 1-6; State v. Johnson. No. 95-O8-OO25C-CR (97th Judicial District of Clay County Texas), Transcript at pp. 71 81-83 (hereinafter "TR p."). His sentence was assessed at ten years confinement. Id. Petitioner filed a direct appeal and, on August 29, 1997, his conviction was affirmed. Petition ¶¶ 8 9; Johnson v. State, No. 2-96-185-CR (Tex.App. — Ft. Worth 1997, pet. ref'd.). Johnson's petition for discretionary review was refused on February 11, 1998. Johnson v. State, P.D.R. No. 1361-97. He filed one state habeas application attacking this conviction which, on May 19, 1999, was denied without written order. See Petition ¶¶ 10-11; Ex parte Johnson, App. No. 41, 344-01 at Cover.
Johnson was acquitted on a charged of indecency with a child. Petition ¶ 4.
In support of the instant petition, Johnson presents the following grounds for relief:
1. He was denied effective assistance of counsel because his attorney:
A. failed to know the law related to the criminal charge;
B. failed to raise the viable defenses of medical care and justification;
C. caused Petitioner to admit elements of the offense under oath;
D. failed to object to the erroneous admission of extraneous offenses;
B. failed to object to undisclosed witnesses and evidence;
F. failed to interview a defense witness before putting her on the stand, and;
G. he failed to object to the suppression of relevant evidence.
2. The trial court erred by failing to follow the Texas Rules of Criminal Evidence. The court wrongfully allowed reference to extraneous offenses and/or priori "ad acts in the prosecutor's opening statement and the court erred in suppressing relevant evidence;
3. The prosecutor failed to disclose evidence and witnesses prior to trial, and
4. He was denied effective assistance of counsel on appeal because counsel's points of error had no basis in law, counsel failed to raise issues presented in the instant action and counsel failed to appear for oral arguments.
Petition ¶¶ 12.A-D and attachments thereto.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"), Pub.L. 104-132, 110 Stat. 1217, under which we now have a heightened standard of review in federal habeas corpus proceedings. Title I of the Act substantially changed the way federal courts handle such actions. The AEDPA applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 5211 U.S. 320, 326, 117 S.Ct. 2059, 2063 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Therefore, Title I of the Act applies to his petition.
The AEDPA provides in pertinent part:
(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 a State court proceeding.28 U.S.C.A. § 2254(d) (West 2002).
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 562, 412-13, 120 S.Ct. 1495, 1523 (2000); Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, 531 U.S. 1002, 121 S.Ct. 508 (2000). Under § 2254(d)(2), the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court (1) unreasonably applies the correct legal file to the facts of a particular case or (2) it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407, 120 S.Ct. at 1520. The standard for determining whether a state courts application was unreasonable is an objective one. This standard of review applies to all federal habeas corpus petitions which, like the instant case, were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
Upon a finding of state court compliance with the "contrary to" clause of 28 U.S.C. § 2254 (d)(1), federal courts give deference to the state courts findings unless such findings violate the "unreasonable application" clause of 28 U.S.C. § 2254 (d)(2). Chambers, 218 F.3d at 363. The "unreasonable application" clause concerns only questions of fact Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001 (2001). The resolution of factual issues by the state court are afforded a presumption of correctness and will not be disturbed unless the habeas petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 771 (1981). Absent such evidence, the presumption of correctness is applied provided that the state court findings are evidenced in writing, issued after a hearing on the merits and are fairly supported by the record. E.g., Burden v. Zant, 498 U.S. 433, 111 S.Ct. 862, 864 (1991); Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994), cert. denied, 513 U.S. 1137, 115 S.Ct. 959 (1995); May v. Collins, 955 F.2d 299, 310 (5th Cir.), cert. denied, 504 U.S. 901, 112 S.Ct. 1925 (1992); 28 U.S.C. § 2254 (d).
The facts of this case were recited by the Second Court of Appeals as follows:
On January 29, 1995, [Johnson] and his daughter M.J. were driving home from a Super Bowl Party they had attended. During the drive they began discussing masturbation and [Johnson] told his daughter "about the clitoris being the little bump on top and that you rubbed an massaged it." [Johnson] recounted that he talked to his daughter about it, explaining that "it [is] natural and there is nothing to be ashamed of to do it." The victim testified that [Johnson] "pulled [her] sweatpants and [her] underwear out and stuck his finger inside [her]." [Johnson] testified that his only intention in putting his hand down the inside of his daughter's panties was to educate her on how to masturbate.
Johnson v. State, No. 2-96-185-CR (Tex.App. — Ft Worth 1997, pet. ref'd.); Ex parte Johnson, App. No. 41, 344-01 at p. 122.
Petitioner first claims that he was denied effective assistance of counsel at trial. The Sixth Amendment of the United States Constitution guarantees a criminal defendant "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 687-91 694, 104 S.Ct. at 2064-66 2068. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
It is not sufficient for a habeas petitioner to merely allege deficiencies on the part of counsel. He must affirmatively plead the resulting prejudice in his habeas petition. Hill v. Lockhart, 474 U.S. 52, 59-61, 106 S.Ct. 366, 371 (1985); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988). A court reviewing an ineffectiveness claim need not consider the two inquires under Strickland in any particular order since a failure to establish either requirement necessarily defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Smith v. Puckett, 907 F.2d 581, 584 (5th Cir. 1990), cert. denied, 498 U.S. 1033, 111 S.Ct. 694 (1991).
"It is well settled that effective assistance is not equivalent to errorless counsel or counsel judged ineffective by hindsight. [citations omitted]. Rather, inquiry must be made into the totality of the circumstances surrounding counsel's performance to determine whether reasonably effective representation was provided." Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court reviewing an ineffectiveness claim must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional competence or that, under the circumstances, the challenged action might be considered sound trial strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Bridge v. Lynaugh, 838 F.2d at 773.
Petitioner claims that his attorney failed to know the law related to the criminal charge for which he was tried. Specifically, Johnson claims that counsel's trial strategy was to prove lack of sexual intent which, Johnson argues, is not an element of the offense of aggravated sexual assault. Petition ¶ 12.A. A review of the statute in question, Texas Penal Code § 22.021(a)(1)(B) (West 1996). reflects that a person must act "intentionally or knowingly' as an element of the offense. A review of the record reflects that Johnson's attorney argued that, with regard to count one of the indictment, aggravated sexual assault, Johnson had no intent to touch his daughter's clitoris and that the contact made was "incidental" or "accidental." State v. Johnson, No. 93-08-0025C-CR (97th Judicial District of Clay County, Texas), Statement of Facts, Vol. 3, pp. 339-40, 417 462 (hereinafter "SOF V. ___, p.___."). Johnson himself testified that the contact he made with his daughter was incidental and that he was only trying to provide sex education. SOF V.3, pp. 416-17. Thus, it is clear that Johnson is mistaken as to the arguments offered by counsel at trial His attorney did not argue lack of sexual intent as to the aggravated sexual assault charge. He argued lack of intent altogether, which, under the circumstances, did not constitute an objectively unreasonable argument.
With respect to count two of the indictment, indecency with a child, Johnson's attorney did argue that his client acted without intent to gratify his sexual desire. SOF V 3, p. 463. Because sexual gratification was an element of count two as charged in the indictment, TR. p. 2, making such an argument did not constitute ineffective assistance of counsel. Moreover, Johnson was found not guilty on count two and, therefore, cannot demonstrate any prejudice resulting from counsel's argument
Petitioner claims that counsel was ineffective because he failed to understand and raise the defenses of medical care and justification. Petition ¶ 12.A. Johnson claims that such defenses were viable because he was acting out of concern for his daughter's health. Id. He argues that his concern for his daughter, coupled with the fact that former Surgeon General Joycelyn Elders had recently urged that children be taught about masturbation to prevent the spread of sexually transmitted diseases, presented a strong case for the affirmative defenses of medical care and justification. Id. Johnson reasons that counsel's failure to request a jury instruction on this defense precluded the jury from understanding how his conduct may have been excused. Id.
A review of the statutory defense specific to prosecution for aggravated sexual assault reflects that "justification" is not an affirmative defense embodied within that statute. See Texas Penal Code §§ 22.021(d) 22.011(d) (West 1996). In his reply to Respondent's answer, Petitioner argues that counsel was ineffective for failure to raise the defense of justification under Texas Penal Code § 9.22 (Necessity), § 9.61 (Parent-Child Relationship) § 9.62 (Educator-Student Relationship). Petitioner's Reply to Respondent': Answer p. 6.
Texas Penal Code § 9.22 — Necessity (West 1996) provides that:
Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Texas courts have held that, under § 9.22(1), reasonableness of the actor's belief and harm-balancing are central to the defense of justification by necessity. Burleson v. State, 791 S.W.2d 334, 339 (Tex.App. Austin 1990, pet. dism'd). Under § 9.22(2), Texas law defines "ordinary standards of reasonableness" to mean "standards that an ordinary and prudent person would apply to the circumstances that the actor faced." Burleson, 791 S.W.2d at 339 (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex.Cr.App. 1982)). From the facts of the instant case, it is readily apparent that Johnson's conduct was not immediately necessary. His daughter had just stepped out of the truck to pee. SOF V.3, p. 416. There is no indication from the record in this case that she was in imminent danger of contracting a sexually transmitted disease or of becoming pregnant as argued by Petitioner. In applying the harm-balancing test in light of how a reasonably prudent person would have acted under the circumstances, "the harm sought to be avoided by the actor's conduct must clearly outweigh the harm caused by the conduct." Burleson, 791 S.W.2d at 339. Under the facts and circumstances of this case, it is readily apparent that the harm Petitioner claims he sought to avoid did not outweigh the harm inflicted on his daughter, especially in light of the ordinary and prudent person standard. Thus, it is clear that neither a defense nor a charge on the issue of justification by necessity was warranted and Petitioner's attorney, therefore, cannot be found ineffective for failing to raise such a defense.
Texas Penal Code § 9.61 — Parent-Child (West 1996) provides that:
(a) The use of force, but not deadly force, against a child younger than 18 years is justified:
(1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and
(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.
(b) For purposes of this section. "in loco parentis" includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.
Here, Petitioner argues that a jury could have found that he was acting to safeguard or promote his daughter's welfare. Petitioner's Reply to Respondent's Answer p. 6. Under Texas law, "a 'reasonable belief' means a belief that would be held by an ordinary and prudent in the same circumstances as the actor." Texas Penal Code § 1.07(a)(42) (West 1996). "The use of force under section 9.61 is not justified simply because of a parent's subjective belief that the fort e is necessary; rather, the use of force is justified only if a reasonable person would have believed the force was necessary to discipline the child or to safeguard or promote the child's welfare." Assiter v. State, 58 S.W.3d 743, 748 (Tex.App.-Amarillo 2000, no pet.) (citing Teubner v. State, 742 S.W.2d 57, 59 (Tex.App.-Houston (14th Dist.) 1987, pet. ref d), cert. denied, 486 U.S. 1043 (1988)). Thus, the standard is an objective one. Id. There is no evidence in the record which could demonstrate that Petitioner's conduct in touching his daughter's clitoris was "necessary" to safeguard or promote her welfare as required under the statute. Morever, Petitioner's subjective belief that he acted reasonably is irrelevant. Under the facts and circumstances of this case, no rational juror could have found that Petitioner acted with objective reasonableness. Petitioner's conduct under the circumstances was not ordinary or prudent in light of contemporary standards of human decency. Therefore, neither a defense nor a charge on the issue of justification through a parent-child relationship was warranted and counsel cannot be deemed ineffective for failing to pursue the same.
Johnson next claims that he was simply trying to educate his daughter on masturbation and that counsel was in effective for failing to present a defense and request a charge under Texas Penal Code § 9.62. Educator-Student (West 1996). Petitioner's Reply to Respondent's Answer p. 6. This section of the Penal Code provides that:
The use of force, but not deadly force, against a person is justified:
(1) if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and
(2) when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.
Here, Petitioner was the father of the victim. He was not an educator who was entrusted with her care for some special purpose — i.e. a teacher. A review of published Texas case law reflects no sexual assault case where a defense to prosecution was raised under this penal code provision. Simply put, this statutory defense was not available under the facts and circumstances of this case and counsel cannot be deemed ineffective for failing to raise the defense.
Johnson asserts that his trial attorney was ineffective for failing to raise the defense of justification due to medical care. Under the aggravated sexual assault statute, it is a defense to prosecution if "the conduct consisted of medical care for the child . . ." Texas Penal Code §§ 22.021(d) 2.2.011(d) (West 1996). At trial, Johnson testified that, immediately prior to the incident giving rise to his conviction, he and his daughter got out of their truck to pee on the side of the road. SOF V.3, p. 416. Further review of the record reflects no evidence to support a claim that Johnson was administering medical care or that his daughter was in need of medical care. At trial and in the instant proceeding, Johnson casts his defense in terms of educating his daughter. Counsel cannot be deemed ineffective for failing to raise a medical care defense that was not supported by any evidence.
In his next ineffective-assistance-of-counsel claim, Johnson complains that counsel caused him to take the witness stand and admit elements of the offense thereby guaranteeing his conviction. In support of this ground for relief, Johnson cites his testimony at SOF V.3, pp. 416 426. A review of the testimony reflects that counsel elicited testimony from Johnson that the touching of his daughter's clitoris was accidental or incidental. SOF V.3, pp. 416-17. This testimony supports counsel's argument that there was no intentional touching and that it was an accident See Counsel's Closing Argument, SOF V.3, p. 462. Counsel cannot be found ineffective for eliciting testimony that supported his efforts to show that an element of the offense was missing i.e. intent. Accordingly, this ground for relief must fail.
Next, Johnson claims that counsel was ineffective because he failed to object to the erroneous admission of extraneous offenses and that he failed to request a limiting instruction on the impact of extraneous offenses. Petitioner does specifically identify the extraneous offenses that he claims were erroneously admitted because of counsel's failure to object. In his Memorandum Brief; filed in support of his petition, Johnson cites the Statement of Facts at Vol. 2, pp. 202-203 231 and Vol. 3, pp. 265-268, 278, 282, 288, 318, 362-363. Review of these portions of the Statement of Facts reflects four instances where the Court presumes Petitioner believes his attorney should have objected.
Extraneous offenses maybe admitted into evidence without violating due process if prosecutors (1) made a strong showing that defendant committed the offense, and (2) demonstrated that the extraneous offense was rationally connected with the offense charged. Story v. Collins, 920 F.2d 1247, 1245 (1991). To prevail on a claim that evidence of an extraneous offense was erroneously admitted at trial, a petitioner for habeas relief must "establish that the trial error [if any] was not merely an abuse of discretion, but was so grave as to amount to a denial of his constitutional right to substantive due process: that is, that the error made the trial fundamentally unfair" Kirkpatrick v. Blackburn, 777 F.2d 272, 279 (5th Cir. 1985), (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 (1985)), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907 (1986).
The first is testimony from Petitioner's daughter that he had touched her in an inappropriate manner prior to the date of the offense for which he was charged. SOF Vol. 3. p. 278. Clearly, because intent was an issue in this case, such testimony would be admissible in Texas. See Texas Rules of Criminal Evidence No. 401, 404(b) 405(b). Thus, counsel cannot be deemed ineffective for failing to object. Moreover, Petitioner cites no prejudice resulting from counsel's alleged ineffectiveness.
The next two instances appear to have occurred when (1) Petitioner's daughter, was responding to cross examination regarding any knowledge of her mothers plan to seek a divorce and (2) when his daughter testified, on cross examination, that her grandmother hates him because he abused her mother. The daughter first testified that she knew about her mother's divorce plans because "it was kind of obvious whenever your husband molests your daughter and the rest of your children." SOF Vol. 3, p. 282. Assuming that Petitioner is complaining about counsel's failure to object to the witness's comment regarding the molesting of other children, he has failed to demonstrate that the failure to object was objectively unreasonable. To the contrary, counsel could well have been exercising sound trial strategy by letting such a comment pass without objecting or requesting an instruction to the jury and further calling attention to the comment. Moreover, Petitioner has failed to show that there is a reasonable probability that, but for counsel's failure to object, the result of the trial would have been different. Therefore. he cannot prevail on this claim. The next instance that Petitioner cites appears to be a statement by his daughter that her grandmother hates him because he abused her mother. SOP Vol. 3, p. 288. Again, Petitioner has failed to show that the result of the trial would have been different if his attorney had objected or requested a limiting instruction.
Finally, Petitioner appears to be complaining that Shandra Neal, a friend of his daughter's, testified on direct examination that Johnson's daughter told her he had marijuana growing in his kitchen. SOF Vol. 3, p. 362. As with his earlier complaints, that counsel should have objected, Johnson has failed to show that the results of the trial would have been different. The court notes that possession of drugs was not at issue in this case and, therefore, the testimony was not likely to have had any effect on the outcome of the indecency and sexual assault charges.
Johnson claims that counsel was ineffective for failing to object to an undisclosed witness and evidence that was introduced. Specifically, Johnson argues that his attorney should have objected because Pat Mashbum, an expert witness, was not disclosed as a witness prior to trial. Presumably, the undisclosed evidence he complains of was her testimony. See Petitioner's Memorandum Brief at p. 6. Mashburn was a counselor who provided a psychological evaluation and counseling to Petitioner during his divorce. Johnson claims that, if his attorney had objected, he could have gotten a continuance so that he could consult with a defense expert and prepare for cross examination of Mashburn. Id. As with his previous allegations of ineffective assistance of counsel, Johnson has failed to demonstrate a reasonable probability that, but for counsel's unprofessional error, the result of the trial would have been different. He has not shown that counsel's cross examination of Mashburn was deficient and he makes no claim of prejudice. Sec id.
Johnson alleges that counsel failed to interview a defense witness, Linda Guinn, before putting her on the stand. Guinn testified before the court outside the presence of the jury. From the Statement of Facts, it appears that Johnson's attorney was not satisfied with Guinn's testimony and withdrew her as a defense witness before the judge made a ruling on the admissibility of her testimony. SOF Vol. 3, pp. 439-441. Here, Johnson has failed to show that withdrawing the witness was not objectively reasonable as sound trial strategy. Furthermore, he has failed to demonstrate prejudice resulting from counsel's decision. Guinn did not testify before the jury and her testimony, therefore, could not have had any impact on the jury's decision. Johnson has failed to show that, had counsel "interviewed" Guinn before putting her on the stand, her testimony would have been different. He has also failed to demonstrate that the outcome of the trial would have been different if Guinn had testified before the jury. Accordingly, this claim must fail.
In his final ineffective-assistance-of-counsel claim, Johnson alleges that his attorney failed to object to the suppression of relevant evidence. Johnson claims that the Court wrongfully suppressed a letter written by his daughter prior to the offense. He argues that the letter supports his defense that he touched his daughter's genitals in an effort to teach her to masturbate because he was concerned that she was or would soon become sexually active. See Petitioner's Memorandum Brief p. 8; State v. Johnson, No. 95-08-0025C, Court's Exhibit No. 1. The letter, written to "Marie," states that Petitioner's daughter would let "Cory" take off her clothes and she would give him the "red light special." Although Johnson argues that this letter "lent credence to [his] testimony," Petitioner's Memorandum Brief p. 8, he has not shown any reasonable probability that, but for counsel's failure to object to the trial court's suppression of the evidence, the result of the trial would have been different. This Court notes that the Texas Rules of Criminal Evidence generally prohibit the introduction of evidence of a victim's previous sexual conduct in a prosecution for aggravated sexual assault. Tex. R. Crim. Evid. 412. Johnson has failed to demonstrate any exception to this general rule. Therefore, it cannot be said that counsel's representation fell below an objective standard of reasonableness as required to merit habeas relief under an ineffective assistance claim.
Errors of state law, including evidentiary errors, are not cognizable in habeas proceedings as such. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80 (1991). A state court's evidentiary ruling presents a cognizable habeas claim only where it runs afoul of a specific constitutional right or it renders the trial fundamentally unfair. Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993) (citing Johnson v. Blackburn, 778 F.2d 1044. 1050 (5th Cir. 1985)), cert. denied, 510 U.S. 1025, 14 S.Ct. 637 (1993).
Johnson next claims that the trial court erred by failing to follow the Rules of Evidence. He argues that the court wrongfully allowed reference to extraneous offenses and/or prior bad acts in the prosecutor's opening statement and that the court erred in suppressing relevant evidence.
Extraneous offenses may be admitted into evidence without violating due process; if prosecutors (1) made a strong showing that defendant committed the offense, and(2) demonstrated that the extraneous offense was rationally connected with the offense charged. Bagley v. Collins, 1 F.3d 378, 380 (5th Cir. 1993); Story v. Collins, 920 F.2d 1247, 1245 (1991). To prevail on a claim that evidence of an extraneous offense was erroneously admitted at trial, a petitioner for habeas relief must "establish that the trial error [if any] was not merely an abuse of discretion, but was so grave as to amount to a denial of his constitutional right to substantive due process: that is) that the error made the trial fundamentally unfair." Kirkpatrick v. Blackburn, 777 F.2d 272, 279 (5th Cir. 1985) (citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 (1985)), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907 (1986).
Johnson complains that the trial court improperly allowed prosecutorial argument and testimony that he had improper sexual contact with a friend of his daughter. Here the prosecution made a strong showing that the incident occurred. Shandra Neal, a who was 14 years old at the time of trial, testified as to the details of Petitioner's inappropriate contact with her. SOF Vol. 3, pp. 352-356. This extraneous offense was rationally related to the offense charged. Especially in light of the fact that Petitioner's defense to count 2 of the indictment, indecency with a child, hinged on his lack of intent to gratify himself in touching his own daughter. Because Shandra Neal's testimony supported the prosecutor's argument to the jury, there was no error in such argument. Johnson cannot prevail on this ground for relief.
An improper jury argument rarely justifies federal habeas relief. A petitioner must show that the argument was so prejudicial that it denied him of a fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871 (1974); Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907 (1986). A trial is fundamentally unfair if the petitioner would not have been convicted but for the prosecutor's persistent and improper remarks. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986); Rushing v. Butler, 868 F.2d 800, 807 (5th Cir. 1989). However, during jury argument, the prosecutor is permitted to state what he believes to have been established by the evidence and to fairly comment on it. Whittington v. Estelle, 704 F.2d 1418, 1423 (5th Cir.), cert. denied, 464 U.S. 983, 104 S.Ct. 428 (1983).
Johnson argues that the court erred in suppressing relevant evidence. Specifically, Johnson claims that the Court wrongfully suppressed a letter written by his daughter prior to die offense. He argues that the letter supports his defense that lie touched his daughter's genitals in an effort to teach her to masturbate because he was concerned that she was or would soon become sexually active. See Petitioner's Memorandum Brief p. 8: State v. Johnson. No. 95-08-0025C, Counsels Exhibit No. 1. As previously discussed in this opinion, the letter states that Petitioner's daughter would let "Cory" take off her clothes and she would give him the "red light special." Johnson argues that this letter "lent credence to [his] testimony," Petitioner's Memorandum Briefp. 8.
As noted earlier in this opinion, errors of state law, including evidentiary errors, are not cognizable in habeas proceedings as such. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80 (1991). A state court's evidentiary ruling presents a cognizable habeas claim only where it runs afoul of a specific constitutional right or it renders the trial fundamentally unfair. Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993) (citing Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985)), cert. denied, 510 U.S. 1025, 114 S.Ct. 637 (1993). Fundamental unfairness may occur where certain testimony, erroneously admitted, plays a crucial, critical and highly significant role in the trial. Jernigan v. Collins, 980 F.2d 292, 298 (5th Cir. 1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2977 (1993).
The Texas Rules of Criminal Evidence generally prohibit the introduction of evidence of a victim's previous sexual conduct in a prosecution for aggravated sexual assault. Tex R. Crim. Evid. 412. Johnson has failed to demonstrate any exception to this general rule that would be applicable in this case and he does not raise a constitutional challenge to the Texas Rule of Evidence. It is not the role of a federal habeas court to review a state court's interpretation of its own rules of evidence. See Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (stating that it is not the function of a federal habeas court to review a state's interpretation of its own law). Johnson has failed to demonstrate how the trial court's suppression of his daughter's letter ran afoul of any specific constitutional right or rendered his trial fundamentally unfair. The state court's ruling was not in conflict with clearly established federal law nor was it based on an unreasonable determination of the facts in light of the evidence. Therefore, Johnson is not entitled to habeas relief on this ground.
Johnson next claims that the prosecution failed to disclose exculpatory evidence and exculpatory witnesses as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). He argues that the state failed to disclose a report made by Dr. King and that the prosecutor never disclosed his intent to call Pat Mashburn as a witness or his intent to introduce State's Exhibit No. 2. Petition ¶ 12.C.
It is well established that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196-97 (1963). To establish a Brady violation, a petitioner must demonstrate that (1) the prosecution suppressed or withheld evidence that (2) was favorable to the defendant and (3) material to guilt or punishment. 373 U.S. at 87, 83 S.Ct. at 1196-97; East v. Johnson, 123 F.3d 235, 237 (5th Cir. 1997); Allridge v. Scott, 41 F.3d 213, 217 (5th Cir. 1994), cert. denied, 514 U.S. 1108, 115 S.Ct. 1959 (1995). Evidence is material "only where there eldsts a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999) (quoting Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 10 (1995)), cert. denied, 528 U.S. 1067, 120 S.Ct. 630 (1999). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trail. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985); Martin v. Cain, 246 F.3d 471 (5th Cir.), cert. denied, ___ U.S.___, 122 S.Ct. 194 (2001).
Johnson's claims regarding suppression of evidence relating to the testimony of Pat Mashburn and the State's Exhibit No. 2 are without merit. Pat Mashburn provided psychological evaluation and counseling to Johnson. SOF Vol. 3, pp. 3O2-348 Obviously, he was well aware of his history of evaluation and treatment by Mashburn. The failure of the prosecution to disclose evidence known to the defense and readily available to the defense does not result in a Brady violation. The fact that Petitioner may have been unhappy with the substance of Mashburn's testimony does not give rise to a Brady violation. The government is not obligated to furnish information that is fully available to the defendant or could have been obtained through reasonable diligence. E.g. United States v. Mmahat, 106 F.3d 89, 94 (5th Cir.), cert. denied, 522 U.S. 848, 118 S.Ct. 136 (1997); United States v. Aubin, 87 E.3d 141, 148-49 (5th Cir. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 965 (1997); Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 513 U.S. 1137, 115 S.Ct. 959 (1995); Blackmon v. Scott, 22 F.3d at 560, 564-65 (5th Cir. 1994); May v. Collins, 904 F.2d 228, 231 (5th Cir. 1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770 (1991). Moreover, Johnson has failed to demonstrate that Pat Mashburn's testimony was favorable to his defense.
Similarly, failure to disclose State's Exhibit No. 2, a photograph of Johnson and his family, does not violate Brady. Johnson is in the photograph and was obviously aware that it bad been taken. Certainly, he could have obtained a photograph of his family through reasonable diligence. Moreover, Johnson has failed to demonstrate that the photograph was material to guilt or punishment.
Finally, Johnson argues that the prosecution failed to disclose a report of the victim that was allegedly prepared by Dr. King. Here, Petitioner has failed to demonstrate that the report was favorable to his defense or material to the issues of guilt or punishment. Absent such a claim, Johnson cannot prevail on this ground for relief.
In his final ground for relief Petitioner alleges that he was denied effective assistance of counsel on appeal. In a claim of ineffective assistance of counsel on appeal, a petitioner must demonstrate both that "counsel's errors were so serious that counsel was not functioning as the counsel guaranteed to the defendant by the sixth amendment" and "that the particular lapse was prejudicial, meaning that there is a reasonable probability that but for the error the ultimate result would have been different." McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.), cert. denied, 479 U.S. 965, 107 S.Ct. 466 (1986). This is the same standard set forth under Strickland for ineffective assistance of counsel at trial.
Johnson claims that he was denied effective assistance of counsel on appeal because counsel's points of error had no basis in law, counsel failed to raise the issues presented in the instant action and counsel failed to appear for oral arguments. Petition ¶¶ 12.A-D.
The Constitution does not require that appellate counsel raise all non-frivolous grounds on appeal. Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir), cert. denied, 493 U.S. 970, 110 S.Ct. 419 (1989). And it certainly doesn't require that appellate counsel raise frivolous grounds on appeal. After a thorough review of the grounds raised in the instant action, this Court has determined that none of Johnson's grounds for habeas relief are meritorious. An appellate attorney is not ineffective when he fails to present non-meritorious grounds on appeal.
Jobnson claims that counsel's points of error on appeal had no basis in law. The fact that the appellate court ruled against Johnson does not automatically render the points of error baseless as a matter of law. On appeal counsel argued that the finding of not guilty on the charge of indecency with a child barred a finding of guilt on the charge of aggravated sexual assault because indecency with a child is a lesser included offense of aggravated sexual assault. Johnson v. State, No. 2-96-185-CR (Tex.App. — Ft Worth, pet. ret'd). The court conceded that in same instances, this was a viable ground for relief and that a case-by-case determination was required. The court conclude that, from the facts of this particular case, the offense of indecency with a child was not a lesser included offense of aggravated sexual assault. A review of the record reflects that this was quite probably counsel's best argument on appeal. Therefore, counsel cannot be deemed ineffective. Moreover, Johnson has not shown that, but for counsel's alleged ineffectiveness, the result of the appeal would have been different
Assuming the truth of Johnson's assertion, that counsel failed to appear for Oral arguments on appeal, he has failed to show prejudice. The court of appeals fully reviewed the point of error and denied relief on the merits. There is no mention of counsel's alleged absence in the court's opinion and it does not appear that such absence, if true, had any effect on the court's decision. Accordingly, Johnson is not entitled to relief on this ground.
As discussed earlier, under 28 U.S.C. § 2254 (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.
Petitioner has failed to demonstrate that the state courts' decisions were contrary to or involved an unreasonable application of federal law or that any decision was based upon an unreasonable determination of the facts in this case.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DENIED.
The Clerk of Court shall transmit a time copy of this Order to Petitioner and to Counsel for Respondent.