Opinion
No. 3-04-CV-0358-N.
May 26, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Esoto Charlie Johnson, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner pled guilty to aggravated assault with a deadly weapon. The trial court deferred an adjudication of guilt and placed petitioner on community supervision for five years. Some four years later, the state filed a motion to adjudicate guilt after petitioner was charged with assaulting his girlfriend. Following a revocation hearing, the trial court found petitioner guilty of the underlying offense and sentenced him to 10 years confinement. His conviction and sentence were affirmed on direct appeal. Johnson v. State, No. 05-00-00464-CR (Tex.App. — Dallas, Aug. 5, 2002, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex Parte Johnson, No. 44,236-02 (Tex.Crim.App. Jan. 14, 2004). Petitioner then filed this action in federal court.
The state court of appeals initially dismissed petitioner's appeal for lack of jurisdiction. Johnson v. State, No. 05-00-00464-CR (Tex.App.-Dallas, Nov. 22, 2000) (on rehearing). The Texas Court of Criminal Appeals granted a petition for discretionary review, reversed the jurisdictional determination, and remanded the case to the intermediate appellate court for further proceedings. Johnson v. State, No. 34-01 (Tex.Crim.App. May 8, 2002). On remand, the court of appeals affirmed petitioner's conviction.
II.
In two grounds for relief, petitioner complains that: (1) the trial court failed to hold a separate punishment hearing after his probation was revoked; and (2) counsel was ineffective for failing to request a punishment hearing. Respondent counters that the first claim is procedurally barred and the second is without merit.
A.
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). 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). Under Texas law, a party must make a timely and proper objection to preserve a claim for appellate review. See Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.), cert. denied, 112 S.Ct. 202 (1991). The objection must state "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]" TEX. R. APP. P. 33.1(a)(1)(A). This "contemporaneous objection" rule constitutes an adequate state procedural bar for purposes of federal habeas review. See Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.), cert. denied, 118 S.Ct. 1793 (1998).
On direct appeal, the state appellate court expressly held that "appellant did not object to the lack of a separate punishment hearing upon adjudication of guilt or in a motion for new trial. Thus, appellant failed to preserve his complaint." Johnson, No. 05-00-00464-CR, op. at 3 (citation omitted). Petitioner is therefore barred from litigating this claim in federal court. See Muniz, 132 F.3d at 221; Allen v. Dretke, 2004 WL 743861 at *5 (N.D. Tex. Apr. 6, 2004), rec. adopted, 2004 WL 884593 (N.D. Tex. Apr. 23, 2004).
B.
In a related ground, petitioner contends that his attorney was ineffective for failing to request a separate punishment hearing after his probation was revoked. This claim was considered by the state habeas court and is not barred from federal habeas review.
1.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the effective assistance of counsel. That right is denied when the performance of counsel falls below an objective standard of reasonable professional conduct and thereby prejudices the defense. Yarborough v. Gentry, ___ U.S. ___, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different." Strickland, 104 S.Ct. at 2068. See also Lockhart 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 fundamentally unreliable or proceeding fundamentally unfair due to deficient performance of counsel).
Where, as here, a state court has already rejected an ineffective assistance of counsel claim, a federal court may grant habeas relief only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law" or 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)(1) (2); see also Yarborough, 124 S.Ct. at 4 (citing cases). The Supreme Court has made clear that the "unreasonable application" prong of section 2254(d)(1) permits a federal habeas court to "grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the petitioner's case." Wiggins v. Smith, 539 U.S. 510, ___, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003), quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Stated differently, "a federal court may grant relief when a state court has misapplied a 'governing legal principle' to 'a set of facts different from those of the case in which the principle was announced.'" Id., 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous. The relevant inquiry is whether the application of clearly established federal law produced a result that "is so wrong that it is 'unreasonable.'" Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
2.
The state habeas court implicitly found that counsel was not ineffective for failing to request a separate punishment hearing. ( See St. Hab. Tr. at 38-39). This decision is not objectively unreasonable in light of the evidence presented in the state court proceeding. At the revocation hearing, counsel brought out that petitioner was 52 years old, had seven children, and worked as a long-haul truck driver. (Rev. Hrg. Tr. at 36, 42). Petitioner was given an opportunity to explain his version of the facts and circumstances leading up to the assault of his girlfriend. ( Id. at 37-41). According to petitioner, he slapped his girlfriend because "she was cussing at me." ( Id. at 39). Petitioner denied using a broken beer bottle as alleged by the state. ( Id. at 29, 43). After his girlfriend passed out, petitioner dropped her off at a local emergency room. ( Id. at 41-42). Petitioner was unable to wait at the hospital with his girlfriend because his son had just died and he needed to help with the funeral arrangements. ( Id. at 42).
This mitigating evidence was considered by the trial judge before she assessed punishment. Petitioner fails to allege, much less prove, what additional evidence would have been adduced had his attorney requested and obtained a separate punishment hearing. Without proffering such evidence, petitioner cannot prove that counsel was ineffective. See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) ("Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition . . ., unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value."). This ground for relief should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.