Opinion
NO. 4:00-CV-416-A
February 3, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the above-captioned action wherein John Kurt Ludwig is petitioner and Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On January 4, 2001, the United States Magistrate Judge issued his findings, conclusions, and recommendation that the petition be denied. He granted the parties until January 25, 2001, in which to file and serve their objections. On January 23, 2001, respondent filed his objections; on January 25, 2001, petitioner filed his objections. The court has reviewed the record de novo in light of the objections and finds that the petition should be denied.
The factual background and procedural history are described in the Magistrate Judge's findings, conclusions, and recommendation. Neither party objects to such description or to the Magistrate Judge's description of the issues and standard of review on appeal.
Petitioner raises eight grounds in support of his petition. The first five grounds assert that petitioner received ineffective assistance of counsel. The sixth ground addresses the alleged improper introduction of evidence at trial. The seventh addresses the prosecutor's alleged improper closing argument and striking at the defendant over the shoulder of his counsel. The final ground alleges that trial counsel's performance, when considered in its entirety, was constitutionally ineffective.
Petitioner first argues that relief on his ineffective assistance claims is not barred by procedural default, because the Court of Criminal Appeals of Texas did not specifically so state. The trial court found and concluded that the claims were barred by laches. The Court of Criminal Appeals denied the application without written order. The court is satisfied that the denial rested on the state procedural bar. The trial court based its findings and conclusions solely on the procedural bar and did not address the merits in the alternative. There is no reason to believe that the Court of Criminal Appeals denied the petition for any other reason. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). With regard to the argument that the doctrine of laches as applied in Texas is not an independent state procedural bar, petitioner has not shown that that is the case. He cites to no cases with similar facts. Finally, petitioner offers nothing more than a conclusory statement that he was not given a full and fair hearing on this claim in state court.
Petitioner alternatively argues that the court should consider the ineffective assistance of counsel claims because he can show cause and prejudice. See United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), cert, denied. 502 U.S. 1076 (1992). Having independently considered the ineffective assistance grounds, the court is satisfied that petitioner cannot show prejudice. The Magistrate Judge has adequately addressed these issues. The court additionally notes that there is no reason to believe that the note written by petitioner was inadmissible. In any event, the evidence of petitioner's guilt was overwhelming, with or without the note. The argument with regard to the physical evidence that investigation of the angle of the shots fired would have established that petitioner's actions were defensive or not made intending to do harm, objections at 12, is ludicrous. See Ludwig v. State, 969 S.W.2d 22, 24 (Tex.App.-Fort Worth 1998, petition refused) ("[Petitioner] then drove to Wal-Mart and bought a carton of shotgun shells. . . . [Petitioner] then loaded the shotgun, drove to Betina's apartment, shouted he was coming in, and fired two shotgun blasts at her front door."). With regard to the voir dire issues, the record does not clearly reflect that petitioner was forced to accept an unacceptable juror or that the jurors who sat were not impartial. In particular, venire member Isaac first said that she could give consideration to the full range of punishment; then she said she would not consider probation. Immediately thereafter a bench conference was conducted off the record. Statement of Facts, Vol. 3 at 126-27. Several venire members were later stricken for cause, but Isaac was not one of them.
Both petitioner and respondent object to the Magistrate Judge's findings with regard to the sixth and seventh grounds of the petition. Petitioner's objections are without merit; respondent's, on the other hand, appear to be valid. The Magistrate Judge found it necessary to discuss the merits of these grounds because he determined that the state court had not relied upon an adequate and independent state ground to deny relief. The state habeas court found that petitioner "could have raised his sixth and seventh grounds for relief on direct appeal but he did not." Pet., Ex. 3 at 3, ¶ 19. The court then made the alternative finding that petitioner had not, in effect, demonstrated cause and prejudice for the failure to pursue those grounds on direct appeal.Id. at ¶ 20. In this case, the adequacy and independence of the state law bar is clear from the face of the opinion. Accordingly, the procedural bar applies. See Coleman v. Thompson, 501 U.S. 722, 735 (1991). In any event, as with the ineffective assistance claims, there is no reason to believe that either of these grounds has merit. In sum, petitioner has not shown that the result of the proceeding was fundamentally unfair or unreliable.Lockhart v. Fretwell, 506 U.S. 364, 371-73 (1993). Petitioner himself opened the door to much of the evidence against him by insisting on testifying, apparently against the advice of counsel. S.F. Vol. 4, 174-77.
The court ORDERS that the petition in this action be, and is hereby, denied.