Opinion
No. 3:01-CV-2075-H
April 7, 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 is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
A jury convicted Petitioner of capital murder, and, after a dangerous weapon finding was made, he was sentenced to life in the custody TDCJ-CID. State v. Morgan, No. F-97-77236-TK (Crim. Dist. Court No. 4 Dallas County, Tex. March 11, 1998). Petitioner appealed, and the Fifth District Court of Appeals affirmed his conviction. Morgan v. State, No. 05-98-00461-CR (Tex.App.-Dallas 1999, pet. ref'd). His petition for discretionary review was refused. PDR No. 2104-99.
Petitioner filed a state application for writ of habeas corpus. Ex parte Morgan, No. 49,987-01 (Tex.Crim.App. Sept. 5, 2001). His application for state post-conviction relief was denied without written order on findings of the trial court without hearing. Id. at Cover.
Exhaustion of State Court Remedies
Petitioner has exhausted his state court remedies.
Issues
Petitioner claims that:
(1) Counsel provided constitutionally ineffective assistance by permitting hearsay testimony to be admitted without objection; and
(2) the pretrial lineup was impermissibly suggestive.
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) An application for 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 the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Petitioner's state habeas application was denied on the merits.
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus 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 from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A claim of ineffective assistance of counsel is a mixed question of law and fact that courts review under the "contrary to" and "unreasonable application" prongs of 28 U.S.C. § 2254(d). Valdez v. Cockrell, 274 F.3d 941, 946 (2001).
Statement of Facts
The evidence showed that, at approximately 11:30 p.m. on July 22, 1997, Charles Armstrong was watching television with his fourteen-year-old niece Jalena, his two-year-old son Jordan, and two friends, Keith Jackson and David Wilmore. Jalena answered a knock at the door. When she opened the door, two armed men burst into the apartment. One of the men sprayed mace in Jalena's face, temporarily blinding her. The two men told everyone to lay [sic] on the floor, and ordered Armstrong to get money. Jordan had started to cry, and Armstrong reached for the child. When he did, one of the men shot him in the back. They then told Armstrong to crawl to get them the money or the baby would be killed. The two assailants left after Armstrong gave them a box apparently containing money and marijuana. Armstrong was taken to Parkland Hospital where he died from the gunshot wound.
At trial, Jalena testified that the first robber was Corey Shofher. She believed [Petitioner] was the other, although she could not be "one hundred percent sure." Shofher had been killed in an unrelated incident shortly after the robbery and murder of Armstrong.
Wilmore testified that [Petitioner] was one of the assailants. [Petitioner], however, contends that Wilmore had been lying face down on the floor during the attack and, thus, was in a poor position to see anyone. Further, Wilmore had earlier told the police that he was unable to identify anyone and had been unable to identify [Petitioner] in a lineup.
[Petitioner's] sister, Leola Morgan, and his former girlfriend, Alicia Smith, testified that [Petitioner] told them he had committed the robbery with Shofher. Smith also testified that [Petitioner] admitted to her that he was the person who shot and killed Armstrong. [Petitioner] argues that Smith's testimony was not credible because she acknowledged that she was mad at him when she gave her statement to the police. [Petitioner] contends that Leola's testimony had little probative value because there was some evidence that the police initially obtained her statement by threats and harassment. [Petitioner] testified that, on the morning of July 22, 1997, he was visiting his sister Cheryl. He saw Shofher standing outside the apartment. He talked briefly with Shofher and then left. At around 5:30 p.m. that day, [Petitioner] went to Leola's house. Approximately two days later, he first discovered that there had been a shooting at the apartments where Armstrong had been killed. [Petitioner] denied any role in the robbery and murder. However, [Petitioner] had earlier made a statement to Detective William Carolla admitting participation in the robbery, but denying that he shot Armstrong.Morgan, No. 05-98-00461-CR, slip op. at 1-3.
Petitioner's Ineffective Assistance of Counsel Claim
The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art., VI. The merits of the ineffective assistance of counsel claims that are now before the Court are squarely governed by the United States Supreme Court's holding in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Petitioner is required to prove that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial. Strickland, 466 U.S. at 687. In Strickland, the United States Supreme Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. A petitioner must prove both deficient performance and prejudice. To prove such prejudice, a petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Strickland, 466 U.S. at 694.Counsel's Alleged Failure to Object
Petitioner alleges that counsel provided ineffective assistance by failing to object to hearsay testimony. He claims that during the trial in this matter, Alicia Smith testified that Corey Shofher and the Petitioner's sister had told her that the Petitioner had admitted to being involved in the crime. The court has reviewed the transcript in this matter and notes Petitioner's counsel did make hearsay objections during Alicia Smith's testimony. Some of the objections were overruled, and some were sustained. Tr. at 79, 82-83. Petitioner's allegations that his counsel was ineffective for failing to object to hearsay testimony is without merit Further, any out-of-court statements made by Morgan that Smith heard directly are admissions of a party opponent and, as such, are not hearsay. Petitioner's allegations regarding counsel's failure to object to hearsay are vague. He fails to point to a single instance in the record where counsel's failure to object would have been constitutionally ineffective assistance, In sum, the Court, after examining the record, finds that Petitioner has failed to prove any deficient performance on the part of Counsel. Additionally, he has failed to show that any deficiency prejudiced him.
The state court decisions to deny habeas corpus relief based upon ineffective assistance of counsel did not result in a decision that was contrary to, or involved an unreasonable application of Strickland; or in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Impermissible Suggestive Pretrial Lineup
Petitioner argues that David Wilmore's in-court identification of him was tainted by a suggestive pretrial identification. To succeed on a tainted identification claim a petitioner must show that based upon the totality of the circumstances "the confrontation . . . was so unnecessarily suggestive and conducive to irreparable misidentification that he was denied due process of law." Stovall v. Denno, 388 U.S. 293, 301-302 (1967). The two-pronged standard requires him to show that the pretrial identification process (1) was impermissibly suggestive and (2) created a substantial likelihood of misidentification. Scott v. Maggio, 695 F.2d 916, 920 (5th Cir. 1983); United States v. Bazan, 637 F.2d 363, 365 (5th Cir. 1981). Reliability is crucial in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98 (1977).
Wilmore, the only witness to identify Petitioner as one of the perpetrators, testified that on July 22, 1997, while he was at the residence of Charles Armstrong, there was a knock at the front door. Two men entered and Wilmore was forced to lie face down on the floor. Wilmore testified that as the men were leaving, he saw Petitioner running past the couch and out the door. He identified Petitioner in court as one of the men. When the police came to investigate, Wilmore told the police that he could not identify the suspects. Wilmore testified that he picked Shofher out of a photographic lineup, but failed to identify Petitioner from the photographs.
On habeas corpus review, the state court determined that nothing suggested that Wilmore's in-court identification of Petitioner was tainted by the pretrial photo spread. Ex parte Morgan at 15. The court noted that Wilmore's failure to identify Petitioner before trial was revealed in testimony. Id. The court stated that "the fact that the witness was able to identify [Petitioner] at trial does not mean he was subjected to an impermissible suggestive lineup." Id.
State court findings of fact must be presumed correct unless rebutted by "clear and convincing" evidence. 28 U.S.C. § 2254(e)(1). Petitioner failed to rebut the trial court findings. The Court must consider the totality of the circumstances. See Stovall, 388 U.S. at 302. The identification process was not so unnecessarily suggestive and conducive to mistaken identification that Petitioner was denied due process of law. Wilmore stated unequivocally that he saw Petitioner carrying a shoebox as he left the apartment after the crime. He stated that the light was on and nothing was covering Petitioner's face. Petitioner's counsel cross-examined Wilmore about his failure to pick Petitioner out of the lineup and about his in court identification. The reliability of his identification was tested in the trial, and it was reviewed by the trial court in the habeas corpus proceedings.
Petitioner also seems to argue that the evidence is insufficient to support the jury's verdict of guilt. The state appellate court applied Jackson v. Virginia, 443 U.S. 307, 319 (1979) to determine whether, under the United States Supreme Court's standard of review, the evidence is legally sufficient to support the jury's verdict. It noted that Petitioner's efforts to discredit the State's witnesses did not destroy the probative value of their testimony and it was for the jury to determine their credibility and the weight to be given their testimony. It found the evidence legally sufficient. See Jackson, 443 U.S. at 319.
The Court has thoroughly reviewed the record and concludes that the state court's denial of habeas corpus relief did not result in a decision that was contrary to, or that involved an unreasonable application of, the United States Supreme Court's clearly established law. Moreover, it did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, Petitioner is not entitled to federal habeas corpus relief. See 28 U.S.C. § 2254(d).
RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus be DENIED.