Opinion
No. 4:10-CV-367-A.
December 1, 2010
MEMORANDUM OPINION and ORDER
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Larry Edward Karnes, a state prisoner currently incarcerated in Huntsville, Texas, against Rick Thaler, Director of the Texas Department of Criminal Justice, Correctional Institutions Division, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.
I. Factual and Procedural History
In 2001 petitioner was indicted for robbery by threats in the Criminal District Court Number One of Tarrant County, Texas, Case No. 0820643D. (Clerk's R. at 3) The indictment also included enhancement and habitual offender allegations. ( Id.) In 2002 a jury found petitioner guilty of the offense, true to the enhancement and habitual offender allegations, and assessed petitioner's punishment at fifty-five years' confinement. ( Id. at 73). Petitioner appealed his conviction, but the Second District Court of Appeals of Texas affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Karnes v. Texas, 127 S.W.3d 184 (Tex. App.-Fort Worth 2003); Karnes v. Texas, PDR No. 963-08. Petitioner also filed a postconviction state habeas application, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court without a hearing. Ex parte Karnes, Appl. No. WR-69,982-03, at cover. This federal petition followed.
The state appellate court summarized the background facts of the case as follows:
On August 30, 2001, Teresa Garver ("Garver") pulled into the parking lot of a Walgreens store in Arlington, Texas. Upon entering the lot, Garver noticed a white Ford pickup truck. As Garver parked her vehicle, she saw the truck pull up behind her car and block her in. A young girl exited the truck and approached Garver's car. The girl asked for directions and stated that she could not hear Garver's response with the windows rolled up. When Garver rolled her window down, Karnes approached Garver's car and leaned on the car door, blocking Garver's exit. Karnes demanded that Garver give him money, to which she responded that she did not have any money. With his hands hidden behind his back, Karnes told Garver, "Don't make me use this." Garver was frightened by the threat and believed Karnes had a gun. Moreover, the girl with Karnes told Garver that Karnes was serious and that Garver should not mess with him. Karnes then told Garver that he did not want anybody to get hurt.
At that point, a woman exited the Walgreens and walked to a car directly next to Garver's car where her husband was parked. Karnes then returned to his truck and moved it to allow the woman and her husband to back out of their parking space. While Karnes was moving his truck, Garver opened her car door, pushed the girl out of her way, and ran into the Walgreens. Once inside the store, Garver told a manager what had occurred and the manager immediately telephoned the police.
Approximately ten minutes later, less than one mile down the road, another woman, Judy Allen ("Allen"), was robbed outside of a Dillard's by a man driving a white Ford truck. As Allen was attempting to enter her car, she felt a tug on her purse. After a very hard second tug, Allen was drug by her purse to the truck and pulled to the ground as the truck sped away. As the assailant drove away with Allen's purse, she memorized the license plate number.
Byron Stewart ("Stewart"), an Arlington Police Detective assigned to investigate Garver's robbery, testified that the robberies of Garver and Allen were recognizably similar because of the descriptions of the perpetrators and the white truck. Accordingly, Stewart testified that he contacted Allen to obtain the license plate number of her assailant, ran the plate number through the police computer file, and determined that the plate number was registered to Karnes. After verifying that Karnes was the owner of the truck, Stewart testified that he developed a photo-spread containing Karnes's picture and that of five other men with similar characteristics and showed the photo-spread to Garver. According to Stewart, Garver was able to positively identify Karnes in "[n]o longer than five seconds." The police later arrested Karnes for the robbery of Garver.Karnes, 127 S.W.3d at 188.
II. Issues
Petitioner raises two claims for relief:
(1) He "was denied due process when the state employed a procedure that created a high probability that prejudice would result"; and
(2) He was denied effective assistance of trial counsel.
(Pet. at 7)
III. Rule 5 Statement
Thaler believes that petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254(b)(1) and that his petition is neither untimely nor successive. (Resp't Answer at 5)
IV. Legal Standard for Granting Habeas Corpus Relief
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, 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). 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.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Factual determinations by a state court are presumed correct. See 28 U.S.C. § 2254(d)(2), (e); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams, 529 U.S. at 399. The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion it is an adjudication on the merits, which is entitled to the presumption. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).
V. Issues
1. Due Process
Petitioner claims the state violated his right to due process by entering evidence of an extraneous, unadjudicated offense, the robbery of Allen in which case he was never identified, in order to prove his identity in the underlying criminal case. (Pet. at 7) Petitioner maintains that because he was never identified as the robber or charged with an offense in the Allen incident, admission of evidence of the incident violated the presumption of innocence and created a high probability that prejudice would result. (State Habeas R. at 17)
Petitioner raised a similar claim on direct appeal, in which he argued admission of the extraneous, unadjudicated offense violated state law and/or state evidentiary rules. The state appellate court engaged in an exhaustive analysis of the issue and ultimately determined that the evidence of the Allen offense was relevant under Texas Rule of Evidence 404(b) and admissible for the purpose of proving identity in the Garver robbery. Karnes, 127 S.W.3d at 189-91. After conducting a balancing test under Texas Rule of Evidence 403, the state court further determined that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Id. at 191-94. See also TEX. R. EVID. 404(b) 403.
To the extent petitioner's claim challenges the admissibility of the evidence under state law or evidentiary rules, an error in the application of state law does not constitute an independent ground for granting federal habeas relief. Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007), cert. denied, 552 U.S. 1314 (2008). The state court's evidentiary ruling does not present a cognizable habeas claim unless it violates a specific constitutional right or renders the trial fundamentally unfair. Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993). The admission of an extraneous offense does not violate due process if the state "makes a strong showing that the defendant committed the offense and if the extraneous offense is rationally connected with the offense charged." Wood, 503 F.3d at 414. Offenses may be rationally related, even if they involve different victims and occurred at different times, if the offenses have "striking similarities." See id. at 415.
Petitioner raised his constitutional due process claim for the first time in his state habeas application, and the state habeas court determined the issue, which had been raised on direct appeal, could not be relitigated on state habeas review. (State Habeas R. at 49) The undersigned assumes, without deciding, that the claim has been sufficiently exhausted as required by 28 U.S.C. § 2254(b)(1).
The state appellate court found that the two offenses were very similar because of the "close proximity in time and place of each offense, the common mode in which they were committed, and the circumstances surrounding the offenses. . . ." Id. at 191-94. Deferring to those findings, petitioner has not demonstrated a due process violation or an unreasonable application of clearly established federal law by the state court.
Furthermore, Carver positively identified Karnes at trial and in a pretrial photo lineup as the person who attempted to rob her, the trial court gave a limiting instruction that extraneous offense evidence, if believed, could be considered only as to the issue of identity and for no other purpose, and the jury charge included an instruction that the jury could only consider extraneous offense evidence "in determining the identity in connection with the offense alleged against [Karnes] in the indictment in this case, and for no other purpose." (RR, vol. 3, at 37 State Ex. #3; Clerk's R. at 53) Given these circumstances, even if the evidence was erroneously admitted, Karnes' trial was not rendered fundamentally unfair. See Jackson v. Johnson, 194 f.3d 641, 656 (5th Cir. 1999).
2. Ineffective Assistance of Counsel
Petitioner baldly claims he was denied effective assistance of trial counsel because "counsel failed to make a proper objection to clearly inadmissible testimony that was highly prejudicial." (Pet. at 7) This claim is vague and ambiguous. Petitioner provides no supporting facts or citation to legal authority in his petition to assist the court in determining the precise nature of the claim. Thus, the claim is waived as inadequately briefed. Trevino v. Johnson, 168 F.3d 173, 181 n. 3 (5th Cir. 2006). Mere conclusory allegations are insufficient to raise a constitutional issue in a habeas proceeding. Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). A court will not raise and discuss legal issues that a pro se litigant has failed to assert. Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007).
For the reasons discussed herein,
The court ORDERS petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Court, and 28 U.S.C. § 2253(c), for the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a substantial showing of the denial of a constitutional right.
SIGNED December 1, 2010.