Opinion
CIVIL ACTION NO. 3:01cv1647-L.
April 3, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636 (b), and an order of the district court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations 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 filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Eduardo Martinez (Martinez) is an inmate confined at the Jester III Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) at Richmond. Respondent is the Director of TDCJ-ID.
Statement of the Case: Martinez is currently incarcerated pursuant to a judgment and sentence of the 265th Judicial District Court of Dallas County, Texas, in Cause No. F-9648887-R, in which he was charged with the offense of unlawful possession with intent to deliver a controlled substance, to wit: Cocaine, in an amount by aggregate weight, including any adulterants and dilutants, of 400 grams or more. See Ex Parte Martinez Appl. 49, 422-01 at 000056 (Bill of indictment), 00053-55 (Judgment). After pleading not guilty, a jury found him guilty and the court thereafter assessed punishment at fifteen years imprisonment.
Martinez appealed his conviction which was affirmed by the Fifth Court of Appeals on January 4, 2000, in an unpublished opinion. No. 05-98-01399-CR. Petitioner also filed a petition for discretionary review with the Texas Court of Criminal Appeals which was refused on May 3, 2000. Martinez v. State, PDR No. 0354-00. He subsequently filed an application for writ of habeas corpus pursuant to Texas Code of Criminal Procedure art. 11.07. Ex Parte Martinez, Appl. No. 49-422-01. On May 15, 2001, the trial court, considered the two issues raised by Martinez in his article 11.07 application and thereafter made findings of fact and conclusions of law. See Appl. at 000046-49. The Texas Court of Criminal Appeals denied Martinez's application without a written order, on the findings of the trial court without a hearing, on June 27, 2001. See Appl. at cover.
In response to the instant petition and this court's show cause order, on October 29, 2001, Respondent filed an answer together with copies of Martinez's prior state proceedings. Martinez filed a reply thereto on November 26, 2001. Respondent does not claim that Martinez has failed to exhaust all of his state remedies, therefore his petition is before the court on the merits.
Findings and Conclusions: Martinez raises the following two grounds for relief:
1. That his conviction was obtained by evidence gained via an unconstitutional search and seizure.
2. Ineffective Assistance of Counsel
In Martinez's first ground for relief he principally claims that two Dallas police officers, a Detective Mitchell Keith Bird and a Sergeant Ted Shinn, performed a non-consensual search of his home in contravention of the fourth amendment of the United States Constitution. In response, the Director contends that this court may not review Martinez's fourth amendment claim since the State has provided an opportunity for full and fair litigation of such a claim, under Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976). See also Williams v. Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 115 S.Ct. 42 (1994). The court agrees.
Although Martinez seeks this court to review the state court's determination of his fourth amendment claims, such review is foreclosed by the Supreme Court's decision in Stone v. Powell, supra. If the state processes afford the defendant the opportunity to fully and fairly litigate whether evidence obtained in violation of the fourth amendment should be excluded, then the Stone v. Powell principle precludes federal habeas consideration of those issues. Id; see Caver v. Alabama, 577 F.2d 1188, 1191, 1193 (5th Cir. 1978). In this case, state process afforded Petitioner an opportunity to fully litigate his fourth amendment claim See TEX. CODE CRIM. PROC. ANN. arts. 1.06, 14.01-06, 15.01-26, 16.17, and 38.23 (West 2000).
In this case, Petitioner litigated this issue before the trial court — in a hearing on his motion to suppress — on appeal — in a point of error alleging that the trial court erred in overruling his motion to suppress — and before the state's highest criminal court. In seeking discretionary review, Petitioner claimed the appellate court erred by finding that the trial court did not abuse its discretion by denying Petitioner's motion to suppress. See Pet. for Discretionary Review at 6-9. The Texas Court of Criminal Appeals refused his petition. P.D.R. No. 0354-00.
With regard to Martinez's second ground for relief — ineffective assistance of counsel — when a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984). When considering the reasonableness of counsel's conduct, a court must indulge a strong presumption that it falls within the wide range of reasonable professional competence, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct at 2065; Westley v. Johnson, 83 F.3d 714, 719 (5th Cir. 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 773 (1997).
A court reviewing an ineffectiveness claim need not consider the two prongs of the Strickland test in any particular order, because a failure to establish either one defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Amos v. Scott, 61 F.3d 333, 348 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557 (1995).
Moreover, pursuant to § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254 (e)(1); See also Loyd v. Smith, 899 F.2d 1416, 1424 (5th Cir. 1990) ("Federal courts in habeas proceedings are required to grant a presumption of correctness to a state court's explicit and implicit findings of fact if supported by the record."), cert. denied, 508 U.S. 911, 113 S.Ct. 2343 (1993).
Martinez alleges that his attorney, Mr. Joseph Montemayor (Montemayor), was deficient in failing to conduct a proper voir dire examination of the venirepersons. Specifically, he claims that while the prosecutor's voir dire examination comprised more than thirty pages in the reporter's record, Montemayor's only comprised three pages. Moreover, Petitioner claims that Montemayor wholly failed to (1) ask meaningful questions of the venirepersons, (2) discuss the concept of reasonable doubt, and (3) discuss the fact that the state had the burden of proof. See Attach. to Pet. at 5-11 (Mem. in support)
In addition to the presumption that counsel's performance was adequate, Petitioner fails to offer any evidentiary support for his claims. He merely speculates that because his counsel did not at 5-11 (Mem. in support)
In addition to the presumption that counsel's performance was adequate, Petitioner fails to offer any evidentiary support for his claims. He merely speculates that because his counsel did not pose questions to the jury venire, along the lines of those set out above, his defense was prejudiced and he suffered harm. Notwithstanding the fact that Martinez's claims are completely speculative, he can neither demonstrate prejudice or harm — particularly in light of the fact that the trial court admonished the jury panel with respect to the state's duty to carry the burden of proof of beyond a reasonable doubt. SOF Vol. I at 45. Moreover, the prosecuting attorney fully discussed the state's duty with respect to the burden of proof SOF Vol. I at 51, 55, 64-65.
During his voir dire examination, Mr. Montemayor prefaced his comments with "I'm just going to talk to you [the jury panel] briefly because I believe that the Judge and Mr. Harden [the prosecutor] covered everything just about." SOF Vol. I at 81.
The findings of the Texas state courts with respect to this ground have not been rebutted by "clear and convincing evidence," nor has Martinez shown that the Texas courts' application of the Strickland standard was unreasonable or erroneous. See 28 U.S.C. § 2254 (d)(1) and (2); Williams v. Taylor, 529 U.S. 362, 413 120 S.Ct. 1495, 1523 (2000). Accordingly, he is not entitled to relief on his claim that counsel's voir dire examination was deficient.
In is Findings of Fact and Conclusions of Law recommending that relief be denied, the trial court implicitly found that Petitioner was represented by an attorney who exercised all of the skill and expertise which one could reasonably expect of an attorney, and accordingly, that Martinez was not denied the effective assistance of counsel. See Appl. at 000048. Thereafter, the Court of Criminal Appeals expressly based its denial of relief on the trial court's findings. Id. at cover.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus should be DENIED.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.