Opinion
Civil Action No. 4:02-CV-676-A
December 16, 2002
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 pursuant to the provisions of 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 Vincent A. Montoya, TDCJ-ID #868609, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Huntsville, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In the early morning hours of September 14, 1997, Montoya and an accomplice, Anthony Chavez, followed Y.P.'s car and eventually forced her car off the road. The two kidnapped Y.P.'s passenger, K.F., and took her to a house, where they sexually assaulted the girl. After the two fell asleep, K.F. escaped and went to a neighboring house for help. The police found Montoya and Chavez still asleep in the house. In March 1999, the two were tried jointly. The jury found both men guilty of aggravated kidnapping and aggravated sexual assault and assessed their punishment at life imprisonment for each offense. (8Rep. R. at 74-76; IClerk's R. at 122, 129; 2Clerk's R. at 120, 127.) Montoya appealed his convictions, but the Tenth Court of Appeals affirmed the trial court's judgments on February 28, 2001. See Montoya v. State, 43 S.W.3d 568 (Tex.App.-Waco 2001, no pet.). He did not file a petition for discretionary review.
In Montoya's case, the jury also assessed a $10,000 fine in each case.
The trial court clerk's record in the aggravated kidnapping case, cause no. 0715225AR, is referred to as "1Clerk's R." The trial court clerk's record in the aggravated sexual assault case, cause no. 0715230AR, is referred to as "2Clerk's R."
On January 28, 2002, Montoya filed two identical state applications for writ of habeas corpus, one for each conviction, which the Texas Court of Criminal Appeals denied without written order. Ex parte Montoya, Nos. 49, 361-02 03, at cover (Tex.Crim.App. April 17, 2002) (not designated for publication). On May 8, 2002, Montoya again filed two identical state applications for writ of habeas corpus, one for each conviction, which the Texas Court of Criminal Appeals dismissed under the Texas abuse-of-the-writ doctrine. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). Montoya filed this federal petition for writ of habeas corpus in the United States District Court for the Southern District of Texas, Houston Division, on July 31, 2002, and the proceeding was subsequently transferred to this court by order dated August 7, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In three grounds, Montoya claims that he was denied the effective assistance of trial and appellate counsel and that his sentence in each case constitutes an illegal sentence. (Pet. at 7.)
E. RULE 5 STATEMENT
Cockrell believes that Montoya has sufficiently exhausted his state remedies on the issues presented and, thus, does not move for dismissal on this ground. (Respt Answer at 5.)
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court 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 Supreme Court of the United States 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 federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. 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 the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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 Counsel
In Montoya's first and second grounds, he alleges ineffective assistance of trial and appellate counsel. (Pet'r Br. in Support. 1-23.) Specifically, he contends trial counsel was ineffective by (1) failing to request a severance, (2) failing to request the appointment of a medical expert, (3) failing to secure additional testimony concerning the `rape kit,' (4) failing to request forensic testing on critical evidence, (5) failing to file a motion to suppress evidence obtained as a result of an illegal search, seizure, and arrest, and (6) failing to request a jury instruction on illegally obtained evidence. He contends appellate counsel was ineffective by (1) failing to raise the issue of the trial court's error in not granting a severance, (2) failing to file a motion for new trial, and (3) failing to raise the issue of the trial court's error in omitting a jury instruction regarding the burden of proof for extraneous offenses in the punishment phase of trial.
As a preliminary matter, Cockrell argues that Montoyas claims against his trial counsel under ground one are procedurally barred from federal habeas review because the last state court to consider the claims found the claims procedurally barred. (Resp't Answer at 7-8.) Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Thus, the Court of Criminal Appeals must be given a full and fair opportunity to address the claim on its merits, which in turn requires that the applicant present the claim before that court in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). In Texas writ jurisprudence, a "denial" means that the Texas Court of Criminal Appeals addressed and rejected the merits of a particular claim while a "dismissal" means that the court declined to consider the claim for reasons unrelated to the claim's merits. Ex parte Torres, 943 S.W.2d at 472.
In his state writ applications filed on January 28, 2002, Montoya raised his ineffective assistance claims against appellate counsel, Lauren Chadwick, but failed to raise his claims against trial counsel, Terry Casey. Although he raised the claims against Casey in his state writ applications filed on May 8, 2002, those applications were dismissed as abusive by the Texas Court of Criminal Appeals. Ex parte Montoya, Nos. 49, 361-06 07, at cover. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4. The Texas abuse-of-thewrit doctrine prohibits a successive state habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in a previous habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). The Texas Court of Criminal Appeals does apply the abuse of the writ doctrine regularly and strictly, and the doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995).
Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley v. Johnson, 243 F.3d 215, 219-20 (5th Cir. 2001). Montoya has not given any explanation to excuse his default. Nor has he demonstrated that failure to consider his claims will result in a miscarriage of justice, i.e., that he is innocent of the crimes for which he was charged and convicted. Instead, in an effort to circumvent the procedural bar, Montoya argues that his initial state writs did not attack the actual convictions, but only appellate counsel's deficient performance on appeal, and, thus, he is not procedurally barred from bringing a subsequent application(s) in state court. (Pet'r Reply at 3.) He ignores the fact, however that the Texas Court of Criminal Appeals, in fact, dismissed his subsequent applications as abusive. Accordingly, Montoya's first ground is procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
Turning then to Montoya's complaints against appellate counsel under his second ground, the court agrees with Cockrell that Montoya is not entitled to relief on his claims. Montoya urges that Chadwick was ineffective by (1) failing to raise the issue of trial court error in not granting a severance, (2) failing to file a motion for new trial, and (3) failing to raise the issue of trial court error in not instructing the jury, sua sponte, regarding the burden of proof for extraneous offenses in the punishment phase. The Texas Court of Criminal Appeals considered and rejected these claims as presented in Montoya's initial state writ applications filed on January 28, 2002. Ex parte Montoya, Nos. 49, 361-02 49, 361-03. Thus, we review his claims to determine whether the state court's adjudication of the claims was contrary to or involved an objectively unreasonable application of clearly established federal law on the issue. Bell v. Cone, 122 S.Ct. 1843, 1852-53 (2002).
A criminal defendant has a constitutional right to the effective assistance of counsel on a first appeal as of right. U.S. CONST. amend. VI; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688; see also Smith v. Robbins, 528 U.S. 259, 287-88 (2000) (applying Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 688. The second prong requires a showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688.
If the state court does not make express findings of fact, as here, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sam, 372 U.S. 293, 314 (1963) Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir.), cert. denied, 414 U.S. 868 (1973); Dempsey v. Wain wright, 471 F.2d 604, 606 (5th Cir.), cert. denied, 411 U.S. 968 (1973). Further, if the state court does not articulate the constitutional standards applied, this court may assume that the state court applied correct standards of federal law to the facts in the absence of evidence that an incorrect standard was applied. Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001).
The standards of Townsend v. Sam have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir.), cert. denied, 454 U.S. 1109 (1981).
Applying these standards to the instant case, this court cannot say that counsel's failure to raise the matters asserted by Montoya amounted to substandard representation. Appellate counsel is not required to raise every conceivable argument urged by his client on appeal, regardless of merit. Robbins, 528 U.S. at 288. The question is whether Montoya has shown that Chadwick's failure to raise the issues worked to his prejudice, i.e., that but for counsel's errors he would have prevailed on his appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir. 1991). Montoya has not met this burden.
First, state law dictates when codefendants are entitled to separate trials. Article 36.09 of the Texas Code of Criminal Procedure provides:
Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.
TEx. CODE CRIM. PROC. ANN. art. 36.09 (Vernon 1981).
Montoya contends the state trial court abused its discretion by denying his codefendant's motion to sever based on evidence at the pretrial hearing that his codefendant, Chavez, had two drug-related felony convictions, both of which were less than 10 years old and "available for impeachment under Texas Rules of Evidence, Rule 609(b)," as compared to his prior felony conviction for child abuse in 1981. However, as pointed out by Cockrell, Montoya neither moved for a severance, joined in Chavez's motion, or presented evidence or argument in favor of severance at the hearing. (2Rep. R. at 12-15.) Consequently, even if counsel has raised the issue on appeal, as a matter of Texas appellate procedure, the claim would have been considered waived. See TEX. R.APP. 33.1(a); Hudson v. State, 794 S.W.2d 883, 885 (Tex.App.-Tyler 1990, no pet.).
Second, Montoya's argument that counsel was ineffective by failing to file a motion for new trial is likewise without merit. Montoya contends a motion for new trial and the hearing thereon were necessary to develop a record concerning his ineffective assistance claims. (Pet'r Br. in Support at 20.) However, Cockrell correctly notes that, as a matter of state law, the more "appropriate vehicle" for investigating and developing a record concerning such claims is typically a petition for writ of habeas corpus. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App. 1997); see also TEX. CODE CRIM. PROC. ANN. art. 11.07. In a letter to Montoya, counsel explained why she did not raise ineffective assistance in Montoyas appellate brief and informed him that he could raise the issue in a writ of habeas corpus if he so desired. The letter reads:
Please find enclosed the brief filed in your cases earlier this week. I argued the points that I believed should be raised based on my review of the record and the law. I do not believe that you have a good ineffective assistance of counsel argument, and therefore I did not raise it. Even if you had had a good argument, that type of claim should be raised in a habeas corpus proceeding, which I don't do, not in an appeal from your conviction. Should you wish to pursue a writ of habeas corpus on your own or through another attorney, you may, but pay careful attention to the law at both the state and federal levels because there are both restrictions on the number of writs you may file during your incarceration as well as timing deadlines. (2State Habeas R. at 32.)
Clearly, given Chadwick's professional evaluation of trial counsel's performance, her decision not to file a motion for new trial on ineffective assistance grounds did not constitute deficient performance. Moreover, even if it did, Montoya had an alternative method to raise his claims and establish a record regarding those claims.
Finally, Montoya's third claims also fails. He contends that counsel was deficient by not raising on appeal the trial court's failure to sua sponte instruct the jury as to the State's burden of proof for showing extraneous offenses in the punishment phase. (Pet'r Br. in Support at 21-23.) See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2002) (providing that evidence of an extraneous offense or bad act must be shown beyond a reasonable doubt to have been committed by defendant). In support, Montoya relies on Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000), in which the Texas Court of Criminal Appeals held that it was jury charge error for the trial court not to sua sponte submit an instruction on the matter. As pointed out by Cockrell, however, Huizar was decided after counsel filed Montoya's brief on appeal. Apparently, prior to Huizar, jury charge error did not occur due to omission of such instruction when the defendant failed to request the instruction or object to its omission. At Montoyas trial, his trial counsel neither requested such an instruction or objected to its omission. Appellate counsel was not required to raise the issue on appeal when counsel could not have known of the future decision in Huizar.
In sum, having independently reviewed each of Montoya's ineffective assistance claims in conjunction with the state court records, the state court's adjudication of his claims does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard.
6. Illegal Sentence
In his third ground, Montoya claims his life sentence and $10,000 fine in each case is an illegal sentence. Montoya cites the court to article 43.03(c) of the Texas Code of Criminal Procedure, which provides:
If a defendant is sentenced both to confinement and to pay a fine or costs or both, and he defaults in payment of either, a term of confinement for the default, when combined with the term of confinement already assessed, may not exceed the maximum term of confinement authorized for the offense for which the defendant was sentenced.
TEX. CODE CRIM. PROC. ANN. art. 43.03(c) (Vernon Supp. 2002).
Montoya argues that "his maximum sentence of LIFE cannot be exceeded with a $10,000 fine, which he may default in paying and be required to serve an additional sentence above the maximum." (Pet'r Br. in Support at 23-24.) The court has found no support for Montoya's proposition. Instead, the court finds that Montoya was convicted of two first-degree felonies, each enhanced by a prior felony conviction. See TEx. PENAL CODE ANN. § 12.42(c) (Vernon Supp. 2002). Under the state sentencing scheme, the sentences do not exceed the statutory limits and are, therefore, lawful. Id. Where a sentence is within statutory limits, "the petitioner must show that the sentencing decision was wholly devoid of discretion or amounted to an `arbitrary or capricious abuse of discretion,'. . . or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987), cert. denied, 484 U.S. 1014 (1988). Montoya has made no such showing.
Further, the court agrees with Cockrell that the claim is not cognizable on federal habeas corpus review. (Resp't Answer at 15-16.) Section 2254(a) requires that a state prisoner allege that he "is in custody in violation of the Constitution or laws or treaties of the United States." Montoya merely argues that his sentence in each case is illegal because it does not jibe with article 43.03(c) of the Texas Code of Criminal Procedure regarding payment or discharge of a fine. (Pet'r Br. in Support at 23-24.) He does not state with specificity the federal constitutional right that has been allegedly violated nor does the law cited in his brief in support rely upon federal constitutional law principles.
II. RECOMMENDATION
Based on the foregoing, Montoya'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until January 7, 2003. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjectedto proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 7, 2003, to serve and file, not merely place in the mail, 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, a 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, be and hereby is returned to the docket of the United States District Judge.