Opinion
3-01-CV-1424-P.
April 11, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 Parties: Petitioner is an inmate confined at the McConnell Unit of the Texas Department of Criminal Justice, Institutional Division at Beeville, Texas, serving convictions for aggravated sexual assault
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case. Upon his pleas of not guilty to the aggravated sexual assault indictments returned in Cause Nos. F-94-02006-K and F-94-37936-LK Lamb was tried by a jury which returned guilty verdicts in each charged offense. Thereafter the jury assessed concurrent 80 year terms of imprisonment in each case.
Lamb appealed his conviction in each case which were affirmed by the Fifth Court of Appeals of Texas in a consolidated opinion. He did not thereafter file a petition for discretionary review, but filed an application for habeas corpus relief pursuant to art. 11 07, Texas Code of Criminal Procedure, which was denied by the Texas Court of Criminal Appeals without written order on May 30, 2001.
Findings and Conclusions: In his first ground for relief Lamb contends that the trial court unlawfully amended the indictment in No. F-94-02006-K. There is no federal constitutional right to an indictment before trial in a state criminal action. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111 (1884); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221 (1972). Nonetheless, a defendant is entitled to fair notice of the charges against him.
In this case it is clear that Petitioner had the notice to which an accused is entitled. The indictment in No. F-94-02006-K was returned on June 13, 1994. On December 8, 1994, the prosecution moved to amend the indictment and on the same date the trial court granted the motion and added the written phrase "contact and" to the indictment. Lamb was not tried on the indictment, as amended, until July 1997, which fully complied with the notice provisions under Texas state law. See Appeal No. 05-97-1006-CR [F-94-02006-K] Record Vol. I at pages 0002-0005, art. 28.10(a) Tex. Code Crim. P.
In his second ground Petitioner asserts that the indictment returned in No. F-94-3437936-LK is defective. Specifically he claims that the charge in the indictment alleges violations of both § 22.011 (sexual assault) and § 22.021 (aggravated sexual assault) of the Texas Penal Code. It is well settled in this circuit that the sufficiency of a state indictment is not a cognizable ground for federal habeas corpus relief unless the indictment deprives the state trial court of jurisdiction. E.g.McKay v. Collins, 12 F.3d 66, 68 (5th Cir.) cert. denied 513 U.S. 854, 115 S.Ct. 157 (1994) and where the state court system has implicitly held that an indictment is sufficient to confer jurisdiction, a federal habeas court should proceed no further.Id. at 69. Lamb has cited no decision of the United States Supreme Court which overturns or calls into question this long established principle.
Although not specifically alleged as a ground for relief in his argument portion of his petition he suggests that the jury may have found him guilty of aggravated sexual assault based upon mere contact of his penis with the mouth of the victim child. There is no basis for such a claim in light of the court's charge to the jury which in two instances told the jury that the offense required proof that a defendant knowingly caused the penetration of the mouth of the victim by the defendant's sexual organ in order to find the defendant guilty (See Appeal No. 05-97-1007-CR [No 94-37936-LK] Record Vol. I at pages 0007 and 0009). It is presumed that a jury follows the instructions of the court.
In Petitioner's third ground he claims that the prosecution presented perjured testimony — specifically that of Kasey Stanton — in the punishment phase of his trial. Ms. Stanton testified to having witnessed an act of indecent exposure on June 22, 1996, a misdemeanor offense for which Lamb had been charged, but for which he had not been tried (Vol 4 of Reporter's Record at pages 81-88). Prior to her testimony his counsel had been provided with the police report for this offense (Vol. 4 at 77: See also Vol. 5 of Reporter's Record, Court Exhibit 3).
Lamb claims that Ms. Stanton's testimony was false based upon claimed inconsistencies between the police report narrative (Exhibit 3, supra) and Ms. Stanton's trial testimony. There are no material inconsistencies between the two. As related in her trial testimony Ms. Stanton observed Petitioner to engage in indecent exposure around noon in the pool area at the apartment complex where she resided. Later that afternoon when her boyfriend arrived, she identified the defendant and the two of them followed him to another apartment complex's pool, where they reported him to the manager and maintenance man, who called the police who effected his arrest at around 5:40 in the afternoon. Although there is a discrepancy between the witness's testimony and the contents of the police report as to when Petitioner removed his swim shorts in the course of committing the act of indecent exposure, there is no evidence that the witness ever saw the police report and was given an opportunity to confirm its accuracy or to add any additional details with respect to his conduct. No perjury occurred, let alone a showing that the prosecution knowingly used perjured testimony. Therefore Lamb is not entitled to relief on this ground.
In one of the questions propounded to Ms. Stanton the prosecution erroneously referred to June 22, 1996, as having fallen on a Thursday, instead of a Saturday (Vol. 4, supra, at page 82). This misstatement did not affect Lamb's rights, since it is undisputed that he was arrested on the same date on which the indecent exposure occurred.
In his fourth ground Lamb asserts that his trial counsel failed to provide constitutionally adequate assistance of counsel. In support of this claim he contends that counsel (1) failed to impeach Kasey Stanton's testimony; (2) failed to move to quash the indictments; (3) failed to object to misstatements of the law by the prosecutor and the court; and (4) failed to request a lesser included offense instruction in No. F-94-37936LK.
As reflected in Lamb's art. 11.07 application, the only ineffective assistance of counsel claims presented to the Texas state courts were his attorney's failure to impeach the punishment phase witness, Kasey Stanton, and counsel's failure to move to quash the indictments. See application No. 49,388-01 at pages 0032-0037. The remaining two claims are unexhausted and therefore this court may not consider them on the merits. See 28 U.S.C. § 2254(b)(1)(A). Moreover, since the only evidence presented to the jury in the guilt-innocence phase was that of the victim, who testified that Defendant penetrated his mouth and anus with defendant's penis, there was no evidence to raise an issue that defendant had engaged in mere contact with the victim's mouth and anus. See Reporter's Record, Vol. 3 at 128-130; 140.
For the reasons stated above, there is no evidence that Ms Stanton testified falsely nor is there any showing that she adopted the contents of the policy report, which might have given a basis to question her as to whether she saw him remove his shorts before engaging in an act of public indecency. Lamb has failed to establish either prong of the Strickland test.
Strickland v. Washington, 466 U S. 668, 688, 104 S.Ct. 2052, 2064 (1984).
With respect to his claim that counsel failed to move to quash the indictments, he has not satisfied the second prong of theStrickland text, i.e. that counsel's omission deprived him a fair trial, a trial whose result was unreliable 466 U.S. at 688, 104 S.Ct. at 2064. See note 3, supra. A review of the testimony presented in the guilt-innocence portion of Lamb's trial, including defense counsel's cross-examination of the prosecution witnesses as well as the testimony of those called by the defense, reflects that the defense's theory was that no assaultive conduct had occurred and that the victim's mother, who was married to Lamb on the dates alleged in the indictments, had motivated the victim child to testify falsely. As evidenced by the jury's verdict, this theory was rejected. When a habeas petitioner fails to establish either prong of the two-part test, it is not necessary to consider the other as well.
In his final ground for relief Petitioner claims that the prosecutor engaged in misconduct which violated his due process rights to a fair trial. He reiterates his perjury claim,supra, which is without merit. He also claims that the prosecutor misstated the law. He identifies unobjected to statements of the prosecutor during the voir dire examination of the jury. In order to constitute conduct cognizable as a basis for federal habeas corpus relief it is not sufficient to merely show "that the prosecutor's remarks were undesirable or even universally condemned. The relevant question is whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process'."Darden v. Wainwright, 477 U.S. 168, 182, 106 S.Ct. 2464, 2471 (1986) — citing Connelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868 (1974).
The prosecutor's statements during voir dire were attenuated from the trial on the issue of guilt-innocence. Moreover, where the uncontroverted evidence presented by the prosecution was that in both instances, alleged in the respective indictments, penetration had taken place, See note 3, supra, any error in the prosecutor's remarks did not render Petitioner's trial unfair. RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied and dismissed.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.