Opinion
No. 3:03-CV-086-D.
August 26, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Ronnie Lynn Meshell is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
On May 12, 1998, Misty Allen returned home from work to find that her front door had been pried open. (3 Rep. R. at 128-29.) Two televisions, a stereo, a VCR, a phone, an answering machine, a jewelry box, and jewelry had been taken. ( Id. at 129.)
On May 13, 1998, Gary Tubbs, a driver for UPS, interrupted a burglary while making a delivery at Sondra Busby's home. (2 Rep. R. at 75-79, 84.) When Tubbs realized what was happening, he followed the three people he had seen taking property from the house and called the police. ( Id. at 89.) Tubbs wrote down a general description of the three burglars — two Hispanic men and a white woman — and their license plate number. ( Id. at 90, 99-101, 104-05.) The next day, police found the burglars' car and two of the suspected burglars — Meshell and Meshell's girlfriend Rhonda Mitchell — at a motel. (3 Rep. R. at 59-60, 62.) In Meshell and Mitchell's motel room and in the car, police found property taken during the Busby burglary. ( Id. at 66-71.) The police found additional stolen property from the Allen and Busby burglaries from pawn tickets found in the motel room. ( Id. at 66-68.) Meshell signed a statement admitting to the details of the Busby burglary and exculpating Mitchell and his nephew, Larry Paul Meshell Jr. (5 Rep. R. at State Ex. 15.)
Meshell was indicted in separate indictments for burglary of a habitation for both the Allen and Busby burglaries. (2 Rep. R. at 4-5.) A jury found Meshell guilty of both burglaries, and the trial court sentenced him to 50 years' confinement for each offense, to be served concurrently. (2 State Habeas R. at 40; 3 State Habeas R. at 33.) The Fifth District Court of Appeals affirmed the trial court's judgments, and the Texas Court of Criminal Appeals refused Meshell's petitions for discretionary review on March 21, 2001. Meshell v. State, Nos. 5-00-324 325-CR (Tex.App.-Dallas Sept. 18, 2000, pets. ref'd) (not designated for publication). Meshell filed two state applications for habeas corpus relief, challenging his convictions, which the Court of Criminal Appeals denied without written order. Ex parte Meshell, Nos. 46,572-02 -03 (Tex.Crim.App. Sept. 11, 2002) (not designated for publication). Meshell filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on January 10, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
Meshell's first original petition was a request for leave to file a mandamus application, challenging the accuracy of the state appellate court's record, which was denied. In re Meshell, No. 46,572-01 (Tex.Crim.App. Aug. 30, 2000) (not designated for publication); see TEX. R. APP. 72.1.
Issues
Meshell raises six issues:
1. The Busby indictment was void.
2. His confession was coerced and involuntary.
3. He was denied the right to confront Tubbs.
4. The evidence was legally and factually insufficient to support his convictions.
5. Trial counsel was constitutionally ineffective.
6. Appellate counsel was constitutionally ineffective.
Exhaustion of State Court Remedies
Dretke believes Meshell has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.Standard of Review
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) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).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).
Busby Indictment
Meshell argues that the Busby indictment was void because it was improperly amended to name Meshell as the defendant and to name Sondra Busby as the complainant instead of Bradford Busby. (Pet'r Mem. at 5-11; Pet'r Resp. at 2-4.) In habeas actions, federal courts do not sit to review mere errors under state law. Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir.), cert. denied, 502 U.S. 875 (1991). At its core, Meshell's claim only raises a question regarding Texas law. Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993); cf. Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir. 2001) (holding passing reference to Constitution does not exhaust constitutional claim). Thus, because the indictment was sufficient under Texas law to confer jurisdiction on the trial court, Meshell's indictment complaints provide no basis for federal habeas corpus relief. Williams v. Collins, 16 F.3d 626, 637 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); McKay v. Collins, 12 F.3d 66, 68-69 (5th Cir.), cert. denied, 513 U.S. 854 (1994); Yohey, 985 F.2d at 229. Further, the indictment was not fundamentally defective. Meshell was specifically named as the defendant in the indictment, giving him proper notice. TEX. CODE CRIM. PROC. ANN. art. 21.07 (Vernon Supp. 2004-05). (2 State Habeas R. at 37-38.) Also, ownership of the property could have been alleged to have been in Sondra or Bradford or both without causing a fatal defect in the indictment. TEX. CODE CRIM. PROC. ANN. art. 21.08 (Vernon 1989).
Involuntary Confession
Meshell argues that because Detective William Prettyman made the following promises to him, he was induced to "confess untruthfully": (1) Mitchell and Larry Paul Meshell would not be charged in the Busby case and (2) Detective Prettyman would tell the District Attorney that Meshell had cooperated with the police. (Pet'r Mem. at 12-17; Pet'r Resp. at 4-7.) Meshell admits that Mitchell and his nephew were not charged in the Busby burglary, but asserts that Detective Prettyman did not tell the District Attorney that Meshell cooperated. (Pet'r Mem. at 13.)
The trial court held a suppression hearing on Meshell's allegations. Detective Prettyman testified that Meshell waived his constitutional rights and voluntarily gave a statement. (2 Rep. R. at 114-17.) He stated that the only promises he made to Meshell included a promise not to file charges against Mitchell if she had nothing to do with the burglary and that he would speak to the District Attorney if Meshell was cooperative. ( Id. at 123-24; 3 Rep. R. at 6-7.) Detective Michael Murphy, who interviewed Meshell and took his confession, also testified that no other promises were made to Meshell. (3 Rep. R. at 11-13.) Meshell testified that without these assurances, including Detective Prettyman's assurance that he would ask the District Attorney to let Meshell serve out his current paroled sentence, he would not have confessed. ( Id. at 16.) The trial court denied Meshell's motion to suppress. ( Id. at 43, 136.) The Fifth District Court of Appeals also held that the confession was admissible. Meshell, Nos. 5-99-324 325-CR, slip op. at 7.
A confession is involuntary and violates due process if there is coercion by government agents. Colorado v. Connelly, 479 U.S. 157, 164 (1986). A habeas petitioner has the burden of proving facts that would lead the court to conclude that the confession was not voluntary. Uresti v. Lynaugh, 821 F.2d 1099, 1103 (5th Cir. 1987). The voluntariness of a confession is a mixed question of law and fact, and state court factual findings upon which a finding of voluntariness is based are entitled to a presumption of correctness. 28 U.S.C. § 2254(d); Marshall v. Lonberger, 459 U.S. 422, 433-41 (1983); Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir. 2002) (en banc). A state court's finding that a defendant's confession was voluntary precludes federal habeas relief unless it can be found that the state record did not fairly support the finding of voluntariness. Muniz v. Johnson, 132 F.3d 214, 219 (5th Cir.), cert. denied, 523 U.S. 1113 (1998); Casias v. Beto, 459 F.2d 54, 55-56 (5th Cir. 1972) (per curiam). Both the trial court and the state appellate court found Meshell's confession to be voluntary and admissible. Meshell, Nos. 5-99-324 325-CR, slip op. at 7. (3 Rep. R. 43, 136.) The record supports this conclusion. Meshell was given his Miranda warnings before making his statement, and the promise of leniency in return for cooperation was not sufficiently coercive to constitute a Fifth-Amendment violation. See United States v. Richard, No. CRIM 01-20048-01, 2001 WL 1033421, at *9-10 (W.D. La. Aug. 29, 2001) (listing and discussing cases holding similar promises and inducements by law enforcement officers insufficiently coercive to violate Fifth Amendment). Meshell's statement was voluntary.
Right to Confrontation
Meshell asserts that the trial court, by limiting his questioning of Tubbs regarding his in-court identification of Meshell, violated his constitutional rights under the Confrontation Clause. (Pet'r Mem. at 43-44, 53-54.) The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The guarantees of a face-to-face confrontation with witnesses at trial and of the right to cross-examine those witnesses serve to protect the integrity of the fact-finding process in criminal trials. Maryland v. Craig, 497 U.S. 836, 850 (1990). A complaint that the trial court unduly restricted cross-examination of the State's witness is a mixed question of fact and law that on federal habeas review is subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Wilkerson v. Cain, 233 F.3d 886, 890-92 (5th Cir. 2000). Thus, to be entitled to relief on a claim regarding violation of his Sixth Amendment right to confrontation, Meshell must show not only that the right was in fact violated, but also that "there is 'more than a mere reasonable possibility that [the error] contributed to the verdict.'" Wilkerson, 233 F.3d at 892 (quoting Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (emphasis omitted)).Before trial, Tubbs was unable to identify Meshell from a photographic lineup. (3 Rep. R. at 115-16.) But during his testimony at trial, Tubbs repeatedly identified Meshell in court as the burglar he saw on May 13, 1998. (2 Rep. R. at 92-93, 107, 109.) During cross-examination, counsel attempted to ask Tubbs if he saw any other Hispanic persons, other than Meshell, in the courtroom. ( Id. at 109.) The State objected on relevance grounds, and the trial court sustained the objection. ( Id.) The Fifth District Court of Appeals held that the trial court did not abuse its discretion:
In the present case, appellant cross-examined Tubbs exhaustively regarding his identification of appellant. The prosecutor had previously examined the witness about his report of the Dallas Busby burglary, including descriptions of the three persons at the scene, what they said and did, their car, and his calling the police. In addition, the investigating officer testified about the details of Tubbs's report, which included the particularized description of appellant. In all instances, Tubbs never wavered in his identification. In addition to the characteristic of race, Tubbs identified other individualized features of appellant, his height, weight, age, and hair and eye colors. He was inflexible in his testimony that appellant was the person he saw at the burglary scene. Because of the thorough examination and cross-examination on appellant's identity, the trial court could properly determine that whether there were other Hispanic males in the courtroom was not relevant. The court did not abuse its discretion by limiting the cross-examination on this narrow facet as not even marginally relevant and, further, by deciding the subject of appellant's identification had been exhausted.Meshell, Nos. 5-99-324 325-CR, slip op. at 9. The Court of Criminal Appeals refused Meshell's petitions for discretionary review raising this issue. Based on these factual findings, the trial court's ruling did not violate Meshell's confrontation rights. United States v. Berkowitz, 662 F.2d 1127, 1138-39 (5th Cir. Unit B Dec. 1981); United States v. Mackey, 299 F. Supp. 2d 636, 643-44 (E.D. La. 2004).
Insufficient Evidence
Meshell argues that the evidence is legally and factually insufficient to support his convictions. He claims the evidence is insufficient in the Allen burglary because the State only proved that Meshell possessed stolen goods and failed to show that Meshell burgled Allen's home or that the property was Allen's. (Pet'r Mem. at 18-20, 42-43, 58.) He also attacks the evidence in the Busby case because Tubbs's in-court identification was unreliable and because there was no evidence the property found in the motel was in Meshell's possession. ( Id. at 22-28, 42-43, 58.)
This court will not address Meshell's factual-insufficiency arguments because they are not cognizable on federal habeas. Fox v. Johnson, No. 4:00-CV-291-Y, 2001 WL 432247, at *2 (N.D. Tex. Apr. 20, 2001), adopted, 2001 WL 540215 (N.D. Tex. May 17, 2001).
Meshell raised his insufficiency challenges solely in his state habeas corpus applications. (2 State Habeas R. at 10; 3 State Habeas R. at 9.) In its responses to Meshell's application, the State asserted that a sufficiency-of-the-evidence claim is waived if not raised on appeal. (2 State Habeas R. at 26; 3 State Habeas R. at 19.) The state trial court made no express ruling on Meshell's applications; instead, they were forwarded to the Court of Criminal Appeals with an implied finding that there were no controverted, previously unresolved facts material to the legality of Meshell's confinement. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(c) (Vernon Supp. 2004-05). (2 State Habeas R. at 44; 3 State Habeas R. at 37.) The Court of Criminal Appeals denied the applications without written order. Dretke argues that Meshell's sufficiency claims are procedurally barred based on the state procedural default that sufficiency of the evidence is waived on post-conviction review if not raised initially on direct appeal, which was necessarily the reason relied on by the Court of Criminal Appeals in denying Meshell's applications. (Resp't Answer at 12-14.)
To prohibit a federal court's collateral review, the state court must have clearly and expressly relied on the procedural default as the basis for disposing of the claim. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Coleman v. Thompson, 501 U.S. 722, 729 (1991); Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999). Here, neither the trial court nor the Court of Criminal Appeals clearly and expressly mentioned procedural default as a basis for denying the claim. Cf. West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996) (holding sufficiency claim procedurally barred after state habeas trial court expressly held claim was procedurally defaulted and the Court of Criminal Appeals denied without comment), cert. denied, 520 U.S. 1242 (1997); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994) (same). Further, because the Court of Criminal Appeals' denials are implied adjudications on the merits of Meshell's applications, it would be inappropriate to assume a procedural bar on this ground. See Torres, 943 S.W.2d at 472. Thus, this claim is not procedurally barred. Cf. Bledsue, 188 F.3d at 256-57 (holding claim not procedurally barred when last state court to render a reasoned decision addressed the merits).
To review the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence "in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All credibility choices and conflicting inferences are to be resolved in favor of the fact-finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822 (2000). This court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 324 n. 16). This court need not find that the evidence excluded every reasonable hypothesis of innocence or was wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could have found that the evidence, whether direct or circumstantial, and all reasonable inferences drawn from it established guilt beyond a reasonable doubt. United States v. Salazar, 958 F.2d 1285, 1294 (5th Cir.), cert. denied, 506 U.S. 863 (1992).
Regarding the Busby burglary, Meshell confessed to the crime. (5 Rep. R. at State Ex. 15.) Further, Tubbs saw him at the scene and identified him in court as the burglar. (2 Rep. R. at 92-93, 104-07.) A pawn shop owner testified that Meshell pawned several items at her store, which Busby testified were hers. (3 Rep. R. at 80-84, 94-106.) On the same day as the Allen burglary, Meshell pawned several of the items that were taken from Allen's home. (3 Rep. R. at 129; 5 Rep. R. at State Ex. 9.) This is legally sufficient evidence to support Meshell's convictions. Harris v. State, 656 S.W.2d 481, 483 (Tex.Crim.App. 1983); Kuczaj v. State, 848 S.W.2d 284, 287 (Tex.App. — Fort Worth 1993, no pet.); Dickerson v. State, 740 S.W.2d 567, 570 (Tex.App.-Fort Worth 1987, pet. ref'd).
Ineffective Assistance of 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. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Meshell'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).
Trial Counsel
Meshell asserts that trial counsel was constitutionally ineffective when he:
1. did not properly investigate, keeping him from having knowledge of the facts and law applicable to the case;
2. did not interview and call as witnesses Mitchell and his nephew and, thus, did not advance any defense to the charges;
3. was not prepared for the hearing on the admissibility of Meshell's confession and failed to get a detailed ruling;
4. failed to get a more specific ruling on the trial court's limitation of his cross-examination of Tubbs;
5. did not request an instruction on the lesser included offense of receiving stolen property; and
6. failed to challenge the indictments. (Federal Pet. at 8; Pet'r Mem. at 30-31, 35, 38-41, 45-49, 50-51; Pet'r Resp. at 9.)
First, Meshell cannot meet the prejudice requirement of the Strickland test. The evidence established Meshell's guilt in the burglaries; thus, Meshell cannot show that the result of the trial would have been different had counsel acted differently. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002), cert. denied, 538 U.S. 1001 (2003); Creel v. Johnson, 162 F.3d 385, 396 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999).
Second, Meshell has failed to show deficient performance. In order to establish that counsel was ineffective due to a failure to investigate the case or to discover and present evidence, Meshell must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp. 2d 661, 691 (S.D. Tex. 2001). Meshell's conclusory allegations that his counsel was ineffective for failing to investigate fails to meet his burden of specificity, which does not establish deficient performance or prejudice. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000). (Pet'r Mem. at 30-31, 35, 47; Pet'r Resp. at 9.)
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, 238 F.3d at 635-36. For Meshell 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). Meshell has failed to provide an affidavit or other evidence from either Mitchell or his nephew and only lists his bare assertions that they would have supported his version of events. (Pet'r Mem. at 31, 35, 51.) The limited and conclusory information Meshell 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).
A review of the record reveals that counsel's actions at the hearing to suppress Meshell's confession were not deficient. (Pet'r Mem. at 37, 50.) Counsel cross-examined witnesses and questioned Meshell about the circumstances surrounding his confession. (2 Rep. R. at 118-26; 3 Rep. R. at 5-8, 14-17, 26-29.) He even re-urged his objection to its admissibility later in the trial. (3 Rep. R. at 136.) See Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983). Additionally, counsel was not deficient for failing to object to the indictments: The indictments were not fatally defective; thus, any objection would have been futile. (Pet'r Mem. at 48-49.) 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) (per curiam) (holding counsel not deficient for failing to make meritless argument).
Meshell's argument that counsel was ineffective for failing to get a more specific ruling on the trial court's limitation of his cross-examination is also unavailing. (Pet'r Mem. at 38-41.) Meshell does not assert what a more specific ruling would have accomplished. Thus, it is a conclusory allegation that cannot support habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam). He was also not entitled to a lesser included offense instruction, which forecloses a holding that counsel was ineffective for failing to request it. Marshall, 835 F.2d at 1103. (Pet'r Mem. at 45-47.)
Theft by possession of stolen property is not a lesser included offense of burglary of a habitation when, as here, the indictment does not describe the property or allege its value. Dixon v. State, 43 S.W.3d 548, 551 (Tex.App.-Texarkana 2001, no pet.).
Meshell has failed to establish ineffective assistance as required by Strickland, and the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Appellate Counsel
Meshell also argues that appellate counsel was constitutionally ineffective because he:
1. failed to challenge the sufficiency of the evidence to support the Allen burglary conviction and
2. did not raise an issue attacking trial counsel's performance. (Pet'r Mem. at 56-57; Pet'r Resp. at 13.)
Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish deficient performance, Meshell must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Meshell must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id.
As discussed above, Meshell's issues attacking the sufficiency of the evidence and trial counsel's performance are without merit; thus, appellate counsel was not ineffective for failing to raise them. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); Cantu v. Collins, 967 F.2d 1006, 1017 (5th Cir. 1992), cert. denied, 509 U.S. 926 (1993). Finally, Meshell has failed to establish actual prejudice, i.e., that the result of the appeal would have been different; thus, he is not entitled to habeas relief. Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992).
Summary
Meshell is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Meshell 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.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED.