Opinion
No. 3-01-CV-2267-M
April 15, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Elloyd Johnson was convicted of unlawful delivery of more than one gram but less than four grams of cocaine. Punishment, enhanced by two prior convictions, was assessed at 99 years confinement. His conviction and sentence were affirmed on direct appeal. Johnson v. State, No. 05-98-01387-CR (Tex.App.-Dallas, Mar. 9, 2000, pet. ref d). Petitioner also filed an application for state postconviction relief. The application was denied without written order. Ex parte Johnson, No. 5, 843-02 (Tex.Crim.App. Oct. 24, 2001). Petitioner then filed this action in federal court.
Petitioner filed a prior state habeas application while his direct appeal was pending. That application was dismissed. Ex parte Johnson, No. 5, 843-01 (Tex.Crim.App. Dec. 20, 2000).
II.
Petitioner raises three issues in four grounds for relief. Succinctly stated, he contends that: (1) the prosecutor made improper comments during closing argument; (2) he received ineffective assistance of counsel; and (3) the evidence was insufficient to support his conviction because the testimony of a police informant was not credible.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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; 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 state court 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, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
Petitioner first complains that the prosecutor made improper comments during closing argument at the guilt-innocence phase of the trial. Although none of these remarks are identified by petitioner, he generally accuses the prosecutor of arguing facts outside the record just "three (3) min. before deliberation to the jury." (Hab. Pet. at 7). This undoubtedly refers to comments about petitioner's alleged involvement in a separate arson case and the fact that he failed a polygraph test.
Petitioner's failure to identify the allegedly improper remarks is, in itself, fatal to his claim for habeas relief. See Fahle v. Cornyn, 231 F.3d 193. 196-97 (5th Cir. 2000) (unsupported allegations in prose habeas petition insufficient to justify relief).
1.
An improper jury argument rarely justifies federal habeas relief. A petitioner must show that the argument was so prejudicial that it deprived him of a fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985), cert. denied, 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. Rushing v. Butler, 868 F.2d 800, 807 (5th Cir. 1989). A federal habeas court must look at the jury argument in the context of the entire trial. Kirkpatrick, 777 F.2d at 281; Cobb v. Wainwright, 609 F.2d 754, 755 n. 1 (5th Cir.), cert. denied, 100 S.Ct. 2991 (1980).
2.
The state's case against petitioner was largely based on the testimony of a paid confidential informant, Bobby Harper. Harper testified that, while working under the direction of ATF Agent Sharon Whitaker in a separate arson case, he arranged to purchase crack cocaine from petitioner. (SF-II at 210-12). Whitaker confirmed the controlled drug buy and otherwise corroborated Harper's testimony. ( Id. at 133-35). On cross-examination, defense counsel questioned Whitaker about petitioner's involvement in the arson case. ( Id. at 29-30). The prosecutor then probed deeper into the arson investigation on re-direct. Whitaker said that petitioner became a suspect in a church burning after he failed a polygraph test and because of his prior criminal record and history of drug use. ( Id. at 34-36). After defense counsel objected, the trial court foreclosed further questioning on the subject. ( Id. at 36).
The record shows that petitioner insisted that his attorney ask Whitaker about the arson investigation despite strong warnings from the trial court and defense counsel that such questioning may open the door to testimony about his involvement as a suspect in that case. (SF-III at 25-28).
In view of this evidence, it is not surprising that the prosecutor referred to the church burning during closing argument. The prosecutor stated:
Now, there has been a lot of stuff brought into this case, and it was brought in by the Defense. The State didn't get into this church burning. The State didn't get into the polygraph. The State didn't get into these prior conversations with the Defendant, because it's not releasnt.[sic] It's not relevant to what your duty is today.
What he's charged with is delivering a controlled substance. Maybe, he is a suspect in other cases. Maybe, he's burned down a hundred churches. Who knows?
(SF-II at 269-70). Defense counsel objected to this argument. The trial court sustained the objection and instructed the jury to disregard the remark, but denied a motion for mistrial. ( Id. at 270). The prosecutor continued:
[PROSECUTOR]: It is a totally separate issue. He could be targeted in other investigations. It doesn't make a difference. What he was caught on?
[DEFENSE COUNSEL]: Objection.
[PROSECUTOR]: That is in evidence, Judge.
THE COURT: Excuse me. Your objection is?
[DEFENSE COUNSEL]: It's improper argument. You have already instructed the jury to basically — you sustained the objection, and he's now covering the same area.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Thank you.
[PROSECUTOR]: He is the target of another investigation. That doesn't make a difference. That's not what you're here to decide about today. You're here to decide about this drug case.
The testimony presented by the State is uncontradicted, unimpeached and proven beyond a reasonable doubt, each and every one of those elements.
I don't know if he's going to try to get one of you — just one of you — to say, "Oh, geez. Maybe, this is some kind of federal conspiracy to try to do this case and try to squeeze him into helping in other [sic] another.
Well, that's ridiculous. It doesn't make any difference why they did it. But what they did do is get a dope dealer off our streets. That's what they're paid to do. That's what we want them to do; protected our family, our neighbor, community, our children.
Al Capone. Was he ever convicted for murder or racketeering? No. Tax evasion.
[DEFENSE COUNSEL]: Objection, Your Honor. Not in evidence.
THE COURT: Sustained.
Ladies and Gentlemen, please disregard the statement to the individual Al Capone.
[DEFENSE COUNSEL]: Respectfully move for a mistrial.
THE COURT: Denied. Continue your argument.
( Id. at 270-72)
The state appellate court found that the trial court's instructions to disregard the comment that petitioner may be a suspect in an unrelated arson and the reference to Al Capone were sufficient to cure any error. Johnson, No. 05-98-01387-CR, op. at 2. This decision is not contrary to clearly established federal law or unreasonable in light of the evidence presented at trial. See United States v. Barksdale-Contreras, 972 F.2d 111, 115 (5th Cir. 1992), cert. denied, 113 S.Ct. 1060 (1993) (jury presumed to follow instruction to disregard). Moreover, defense counsel opened the door to this argument by cross-examining Whitaker about petitioner's involvement in the church arson. This ground for relief is without merit and should be overruled.
C.
In two related grounds, petitioner argues that he received ineffective assistance of counsel because his lawyer had difficulty speaking due to throat cancer surgery and had to leave the courtroom after becoming ill during trial.
1.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must first demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhard v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
Petitioner has failed to establish that the performance of his attorney was constitutionally deficient in any respect. The mere fact that counsel recently had throat cancer surgery and spoke with the assistance of a mechanical device does not mean that petitioner was deprived of his right to effective representation. When petitioner expressed this concern to the trial court after voir dire, the judge responded:
Well, if the record does not otherwise show it, Mr. Griffin has had some throat surgery in the past. I believe he advised the jury. I have been able — although, most of the time he was addressing the jury. His back was to the Court. I was able to hear him. I think it appeared from the responses of the jury, the jury could hear him. I know the district attorney, who was sitting closer to the rear of him, could hear him and understand him.
I would think that any attempt the DA had, if it comes to try to take advantage of the fact that Mr. Griffin now speaks more slowly than he did in the past, I think it would be pretty foolish on the State to try to do that. And, obviously, I've advised in chambers, Mr. Griffin and the State's attorney, that we're going to proceed at a pace at which Mr. Griffin is able to interpose any objections he thinks appropriate and ask for any relief he think's appropriate, to make his objections.
But I'm quite satisfied that that [sic] he can do it. I don't see a problem. Mr. Griffin is an experienced lawyer. If he indicates to me that he thinks he's hampering his ability to pose such questions, make such arguments and so forth, I'll be glad to take a different tact.
(SF-II at 87-88). Indeed, the record is devoid of any evidence which suggests that counsel's physical condition impeded his ability to effectively represent petitioner. The state habeas court found that counsel conducted voir dire, cross-examined witnesses, made objections and jury arguments, preserved petitioner's right to appeal, and "performed numerous other functions of a competent and experienced criminal defense attorney." (St. Hab. Tr. at 13). Petitioner has failed to rebut this finding by clear and convincing evidence. Consequently, these grounds for relief should be overruled.
D.
Finally, petitioner contends that the evidence was insufficient to support his conviction because the testimony of a police informant was not credible. Petitioner argues that the informant, Bobby Harper, was unsupervised at the time of the alleged drug transaction and "could have easily talked to the petitioner and then purchased the drugs before returning to the A.T.F. Agent Office Building." (Hab. Pet. at 7). Respondent counters that this claim is procedurally barred from federal habeas review.
1.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338. 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Ellis v. Lynaugh, 873 F.2d 830, 837-38 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982); Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992), cert. denied, 115 S.Ct. 151 (1994). Under Texas law, a defendant cannot challenge the sufficiency of the evidence for the first time in an application for writ of habeas corpus. Ex parte McClain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). A state prisoner who fails to present such a claim to the Texas Court of Criminal Appeals in a petition for discretionary review is procedurally barred from raising the issue in state court and cannot obtain federal habeas relief on that basis. See West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996), cert. denied, 117 S.Ct. 1847 (1997); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994).
2.
Petitioner did not challenge the sufficiency of Harper's testimony in a petition for discretionary review to the Texas Court of Criminal Appeals. The state habeas court denied relief due to this procedural default. (St. Hab. Tr. at 14). Similarly, petitioner is procedurally barred from seeking federal habeas relief on this ground. Renz, 28 F.3d at 432; McClain, 869 S.W.2d at 350.
This claim fails even if considered on the merits. Much of Harper's testimony, including the drug transaction with petitioner, was corroborated by ATF Agent Sharon Whitaker. (SF-II at 133-40). Harper also was wired with a transmitter which was operating the entire time. ( Id. at 13840, 152-53). The transcript of this transmission was admitted into evidence at trial. ( Id. at 42-44).