Opinion
CIVIL ACTION NO. 4:03-CV-131-A.
July 3, 2003.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Kyle Scott Law is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Law, a construction foreman, attacked and seriously wounded a co-worker, Francisco Najera, with a level that may or may not have had a sharp keyhole saw taped to the end of it. (3 Rep. R. at 17, 20, 23, 61; 4 Rep. R. at 7, 63-65, 86, 191-92.) Law argued that he attacked Najera in self-defense. (4 Rep. R. at 93-94.) Law was indicted for aggravated assault with a deadly weapon. (State Habeas R. at 63.) The punishment range for this second-degree felony is 2 to 20 years' confinement and a fine not to exceed $10,000. TEX. PENAL CODE ANN. §§ 12.33 22.02 (Vernon 2003). The State offered Law ten years' deferred adjudication community supervision and restitution for Najera's medical bills in exchange for his guilty plea. (State Habeas Rep. R. at 13, 27.) Law rejected the offer because "[h]e didn't want to be on probation ten years and he didn't want to pay the restitution. He thought it was rather outrageous." ( Id. at 27.) A jury found him guilty and assessed punishment at 15 years' confinement. (State Habeas R. at 66.)
Further, a jury could recommend community supervision in lieu of imposition of a term of confinement. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4 (Vernon Supp. 2003).
The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Law v. State, No. 2-99-328-CR (Tex.App.-Fort Worth Aug. 17, 2000, pet. ref'd) (not designated for publication). Law filed a state application for habeas corpus relief challenging trial counsel's performance. ( Id. at 6-7, 12, 18-28.) Law attached to his application trial counsel's affidavit in which counsel stated that there was no sound trial strategy to support his decisions. ( Id. at 34-35.) The trial court held a hearing and entered findings that concluded trial counsel was not constitutionally ineffective. ( Id. at 52-61.) The Court of Criminal Appeals denied Law's application without written order on the findings of the trial court. Ex parte Law, No. 53,795-01 (Tex.Crim.App. Dec. 18, 2002) (not designated for publication). Law filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on February 20, 2003.
D. ISSUE
Law argues that trial counsel was constitutionally ineffective at the punishment phase of his trial. (Federal Pet. at 1, 20.)
E. RULE 5 STATEMENT
Cockrell believes Law has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION 1. 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 under a state court judgment 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 United States Supreme Court 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), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002), cert. denied, 123 S.Ct. 963 (2003).
Law argues in his petition that this statutory deference does not apply here because the facts as found by the state habeas courts were not supported by the record and because the state habeas courts conclusions were based on incorrect applications of federal law. As shown below, this is incorrect; thus, § 2254's standard of review applies.
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Ineffective Assistance of Trial Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. In the case of ineffective assistance during the punishment phase, prejudice is established if a petitioner demonstrates that his sentence was increased by the deficient performance of his attorney. Glover v. United States, 531 U.S. 198, 200, 203-04 (2001). In other words, the petitioner must show that counsel's deficiencies created a reasonable probability that his sentence would have been less harsh. See id. at 200. Reviewing courts must consider the totality of the evidence before the fact-finder in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
Law's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d)(2).
a. Individual errors
Law argues that trial counsel, Steven G. King, was ineffective for failing to request a reasonable-doubt instruction at punishment in relation to extraneous-offense evidence. At punishment, evidence was admitted that Law had pleaded guilty to assault in 1997 and was placed on deferred adjudication community supervision. (5 Rep. R. at 21.) As the state habeas trial court concluded, this failure was constitutionally deficient performance. (State Habeas R. at 59; State Habeas Rep. R. at 50.) E.g., Allen v. State, 47 S.W.3d 47, 54 (Tex.App. — Fort Worth 2001, pet. ref'd). But, this evidence was admissible, and because the prior conviction was supported by court documents that were admitted into evidence, it is reasonable to assume that the jury would have found beyond a reasonable doubt that it was properly considered in assessing punishment. Cf. Ellison v. State, 97 S.W.3d 698, 701 (Tex.App. — Texarkana 2003, no pet.) (distinguishing cases where harm not found from absence of reasonable doubt instruction at punishment based on the fact that, in those cases, the prior offenses were proved by "overwhelming evidence"). There is nothing to suggest that the jury would have sentenced Law to anything less than 15 years' confinement had they been instructed as to the State's burden of proof on extraneous offenses. Law was, thus, not prejudiced by King's deficient performance. See Glover, 531 U.S. at 204 (in discretionary sentencing system, holding amount by which a defendant's sentence is increased may be a factor to consider in determining whether counsel was ineffective and implying it could bar prejudice showing); Spriggs v. Collins, 993 F.2d 85, 88-89 (5th Cir. 1993) ("In deciding whether prejudice occurred, a court should consider a number of factors: the actual amount of the sentence imposed on the defendant by the sentencing judge or jury; the minimum and maximum sentences possible under the relevant statute or sentencing guidelines, the relative placement of the sentence actually imposed within that range, and the various relevant mitigating and aggravating factors that were properly considered by the sentencer.").
TEX. CODE CRIM. PROC. ANN. arts. 37.07, § 3(a)(1) 42.12, § 5(c)(1) (Vernon Supp. 2003).
Law argues that the mere fact the jury sentenced him on the upper end of the punishment range compels a finding of ipso facto prejudice under Strickland and Spriggs. (Pet'r Reply at 7-8.) This position is untenable. If this court were to adopt Law's interpretation, every criminal defendant sentenced to a long prison term would be entitled to a new trial under the Sixth Amendment merely by showing one lapse in counsel's representation at punishment without having to show how that lapse affected his sentence. This court is not willing to delete a Strickland requirement — prejudice — when there is no indication Law was completely deprived of counsel. See United States v. Cronic, 466 U.S. 648, 658-61 (1984) (holding if there is a complete absence of counsel, prejudice is presumed).
Law contends King was ineffective for failing to seek to exclude testimony about the particulars of Law's 1997 guilty plea. Officer Vernon Justin Miller testified that Law and Law's brother repeatedly hit Miller's father and Miller while Miller's father was at Law's house doing repair work. (5 Rep. R. at 6-17.) Miller testified in detail about the facts of the fight. At the state habeas hearing, King stated that he did not feel he had any legal basis to object to those details. (State Habeas Rep. R. at 19, 21.) Indeed, the underlying facts of a prior deferred adjudication sentence are admissible at punishment. Davis v. State, 968 S.W.2d 368, 373 (Tex.Crim.App. 1998). King was not deficient. However, King was deficient in failing to object to Miller's testimony that the charges against Law were dropped from aggravated assault to assault. (5 Rep. R. at 22; State Habeas R. at 60.) Law has failed to show any prejudice from this failure. The violent nature of Law's attack upon Miller and Miller's father were properly before the jury. It seems improbable that the evidence that the State initially wanted to charge Law with aggravated assault did not change the facts of the offense or intensify the prior offense's effect on the jury's punishment assessment. See Spriggs, 993 F.2d at 88-89.
Law's next attack on King's performance focuses on King's failure to object to Miller's testimony that probation was not an appropriate punishment for Law and that Law is a risk to the community. (5 Rep. R. at 30.) This is relevant and admissible punishment evidence. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). King cannot be held deficient for failing to object. See, e.g., Carter v. Johnson, 131 F.3d 452,464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166,170(5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
Law argues that King was ineffective for not attempting to limit the State's cross-examination of Law regarding his reputation for violence. At the punishment phase, the State asked Law about his violent reputation in the community. Law denied that his reputation was violent or that he had an excessive temper. (5 Rep. R. at 95-96.) As stated above, this evidence was admissible, and King cannot be held deficient for failing to object to the questions. Further, the State was allowed to question Law about his violent nature because he had asserted on direct examination that he was not violent and his attack on Najera was an "isolated incident." ( Id. at 61.) Any objection to the State's questions would have been misplaced.
During its cross-examination of Law, the State asked him what he thought the appropriate punishment would be if someone attacked his wife or daughters the way he attacked Najera. King immediately objected, and the trial court sustained the objection. Law did not answer the question. ( Id. at 93.) Law asserts King was ineffective for failing to seek an instruction for the jury to disregard the question. Although it would have been the better practice to seek the instruction, Law has not made a sufficient prejudice showing in light of the trial court's instruction to the jury to not consider testimony to which an objection was sustained. Wicker v. McCotter, 783 F.2d 487, 495 (5th Cir.), cert. denied, 478 U.S. 1010 (1986). (3 Rep. R. at 4.)
Law next argues that King was ineffective for failing to prepare him for his punishment testimony. King testified that he felt he adequately prepared Law to testify at punishment. (State Habeas Rep. R. at 9.) Although it was a risk to allow Law to testify based on his anger at the guilty verdict, King believed that it was important to have him testify to shore up their argument that probation would be appropriate. ( Id. at 41, 43-44, 61.) King did not prepare Law for his punishment testimony until after the guilty verdict; but, this was a strategic decision to avoid Law appearing stiff and rehearsed. ( Id. at 55.) This court will not second-guess counsel's strategic decisions. Strickland, 466 U.S. at 689-90.
Although King stated in his affidavit that no sound trial strategy supported his failure to prepare Law to testify at punishment (State Habeas R. at 34-35), he testified at the habeas hearing that his statement needed to be "explained." (State Habeas Rep. R. at 9.) The trial court, in concluding that Law received effective assistance of counsel, implicitly credited counsel's testimony that he did prepare Law to testify as part of his trial strategy.
Law's next attack on King's representation is that King failed to subpoena Law's punishment witnesses to testify as to his good character. Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275,1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001). For Law to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witnesses would have testified. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Law has failed to provide an affidavit or other evidence from the witnesses. The limited and conclusory information Law provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp.2d 398,400 (N.D. Tex. 2001). Further, the reason Law's punishment witnesses were not called to testify was because Law told King not to subpoena them and subsequently failed to ensure they were present to testify at punishment. (State Habeas Rep. R. at 35-36.) King cannot be held deficient based on Law's inaction and misrepresentations. See Strickland, 466 U.S. at 691 (holding "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions"); Randle v. Scott, 43 F.3d 221, 225 (5th Cir.) (holding counsel not deficient when defendant told attorney to quit investigating prior conviction, even though it had been reversed, to expedite his guilty plea), cert. denied, 515 U.S. 1108 (1995); Bell v. Watkins, 692 F.2d 999, 1009 n. 11 (5th Cir. 1982) (holding counsel not deficient when defendant refused to provide a list of witnesses that would help his case), cert. denied, 464 U.S. 843 (1983); Gray v. Lucas, 677 F.2d 1086,1093 (5th Cir. 1982) (same), cert. denied, 461 U.S. 910 (1983); Akridge v. Hopper, 545 F.2d 457, 459 (5th Cir.) (holding counsel not deficient where defendant claimed he could remember nothing of the crime and gave no indication of a credible defense), cert. denied, 431 U.S. 941 (1977).
Law asserts King was ineffective for failing to object to testimony about Law's prior altercations with tow-truck drivers. Miller testified that Law "had a run-in with the wrecker drivers." (5 Rep. R. 31.) King did not object, and the State then asked Law on cross-examination if he had past "trouble" with a tow-truck operator, which Law denied. ( Id. at 96.) Based on this record, there is no showing that Law was prejudiced by King's failure to object to these questions. Knox v. Johnson, 224 F.3d 470, 480 (5th Cir. 2000), cert. denied, 532 U.S. 975 (2001).
It appears an objection was not necessary at this point because the prosecutor told Miller "[l]et's don't go into matters you don't have direct knowledge of." (5 Rep. R. at 31.).
Finally, Law contends in one sentence in his 25-page petition that King was ineffective for waiving all of these errors by relying on Maynard as part of his defensive strategy at punishment. This claim is murky at best: it is unclear what King did that would fall under Maynard. Law did not attempt to raise any of these claims on direct appeal; thus, there is no indication that they were waived even in light of Maynard. Further, the record does not support Law's assertion that King considered Maynard as part of his trial strategy.
Under Maynard, no waiver occurs when, after the admission over objection of evidence of an extraneous offense, the defendant subsequently testifies to essentially the same facts to which he had earlier objected. Maynard v. State, 685 S.W.2d 60, 65-66 (Tex.Crim.App. 1985).
It appears that Law failed to exhaust this claim in the state courts, which is a further bar to relief on this claim. 28 U.S.C. § 2254(a)-(b).
b. Cumulative error
Law argues that the cumulative effect of King's errors resulted in Strickland prejudice and, thus, a violation of the Sixth Amendment. (Federal Pet. at 24.) Habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law, (2) the errors were not procedurally defaulted, and (3) the errors so infected the entire trial that the resulting conviction violates due process. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en banc). However, a habeas petition may not just complain of unfavorable rulings or events in an effort to cumulate errors. Id. at 1458. As noted above, Law's claims regarding counsel's representation are either meritless or do not rise to the federal constitutional dimension necessary to warrant cumulative-error analysis. As such, Law has presented nothing to cumulate. Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir.), cert. denied, 522 U.S. 880 (1997). The entirety of the record compels this court to conclude that counsel was constitutionally effective. Cf. Engle v. Isaac, 456 U.S. 107,134 (1982) (holding Constitution guarantees criminal defendants only fair trial and competent counsel, not that every conceivable claim will be raised).3. Summary
In sum, Law is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Law was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Law's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until July 24, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until July 24, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.