Opinion
Civil Action No. 4:02-CV-532-A
September 4, 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 Charles Edward Moten, TDCJ-ID #882498, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1997, Moten was charged in state court with the aggravated robberies of Irving's Gift, Pipe, and Tobacco shop and New Video, an adult video store. (1Clerk's R. at 3; 2Clerk's R. at 3.) It was alleged that Moten used a firearm during commission of each offense.
"1Clerk's R." refers to the clerk's record in trial court cause number 0666047D. "2Clerk's R." refers to the clerk's record in trial court cause number 0677472D.
A jury found Moten guilty of the charged offenses and assessed his punishment at life imprisonment in each case, the sentences to run concurrently. (1Clerk's R. at 55; 2Clerk's R. at 58.) Moten appealed his convictions, and the Second Court of Appeals affirmed the trial court's judgments in an unpublished opinion on March 8, 2001. Moten v. State, Nos. 2-99-309-CR 2-99-310-CR (Tex.App.-Fort Worth Mar. 8, 2001, pet. ref'd) (not designated for publication). On June 27, 2001, the Texas Court of Criminal Appeals refused Moten's petition for discretionary review. Moten v. State, Nos. 786-01 787-01 (Tex.Crim.App. June 27, 2001) (not designated for publication). Moten did not seek writ of certiorari. (Pet. at 3.)
Moten has filed no state applications for writ of habeas corpus challenging the underlying convictions. (Id.) He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on June 15, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding prose habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Moten raises the following grounds for relief:
1. The trial court erroneously refused to allow him to cross-examine a state witness about bias stemming from the reduction of the witness's criminal charges.
2. The prosecutor improperly commented on his failure to present evidence during the state's closing argument in the guilt/innocence phase of trial. (Pet. at 7-8.)
E. RULE 5 STATEMENT
Cockrell believes that Moten has sufficiently exhausted available state remedies on the issues presented and does not move for dismissal on this ground. (Resp't Answer at 4.)F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
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.
Further, 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. 28 U.S.C. § 2254(e)(1). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. 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. Cross-Examination of State's Witness
In his first ground, Moten contends the trial court erroneously refused to allow him to question George L. Thomas, Jr., one of the robbery victims, about possible bias, in violation of his right to confront witnesses under Davis v. Alaska, 415 U.S. 308, 315-16 (1974). Moten alleges Thomas had a potential for bias because he was charged with a felony offense that was reduced to a misdemeanor and disposed of while Moten's case was pending. (Pet'r Mem. of Law at 3-8.)
The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution to confront witnesses against him. U.S. CONST. amend. VI; Davis, 415 U.S. at 315-16. The essential purpose of confrontation is to secure the opponent the opportunity of cross-examination. Davis, 415 U.S. at 315-16. The exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Id. at 316-17. This does not mean, however, that the Confrontation Clause prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a state witness. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). On the contrary, trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant. Id. The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam ) (emphasis in original).
Although the scope of cross-examination is within the discretion of the district court, that discretionary authority comes about only after sufficient cross-examination has been granted to satisfy the Sixth Amendment. United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993), cert. denied, 513 U.S. 807 (1994). The Confrontation Clause is satisfied where defense counsel has been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Id. To show an abuse of discretion, the appellants must show that the limitations imposed on cross-examination were clearly prejudicial. Id.
Prior to testifying at Moten's trial, Thomas testified outside the presence of the jury that he was charged in state court with felony assault of an elderly person, but that the state agreed to reduce the charge to misdemeanor assault in exchange for his guilty plea some seven months before Moten's trial began. (5Rep. R. at 2-13.) He was sentenced to time served and a fine. (Id. at 5.) According to Thomas, he was not offered any kind of deal or any favoritism in his criminal case in exchange for his testimony in Moten's trial. (Id. at 5, 7.) He further testified that Moten's case or his testimony in Moten's case was not mentioned or discussed by his attorney or the state prosecutor in connection with his criminal case. (Id. at 5.) The trial court concluded that Moten could impeach Thomas with the misdemeanor convictions but could not otherwise cross-examine Thomas regarding the underlying facts of the case or the facts regarding disposition of the case. (Id. at 11-13.)
Moten raised his Confrontation Clause claim on appeal and in his petition for discretionary review, but the state courts rejected the claim. The Second Court of Appeals engaged in the following discussion:
The United States Constitution guarantees a defendant the right to confront witnesses. U.S. CONST. amend. VI; Davis, 916 U.S. at 315, 94 S.Ct. at 1110. The constitutional right of confrontation is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a witness's motive, bias, or interest in testifying. Carpenter v. State, 979 S.W.2d 633, 634 (Tex.Crim.App. 1998). For instance, the defendant can cross-examine all facts and circumstances that tend to show that the witness has a "vulnerable relationship" or potential bias or prejudice for the State. Id.; Carroll, 916 S.W.2d at 500. The parameters of cross-examination to show that a witness is biased rests within the sound discretion of the trial court. McDuff, 939 S.W.2d at 617; McDaniel v. State, 3 S.W.3d 176, 179 (Tex.App. — Fort Worth 1999, pet. ref'd).
A review of Texas cases reveals that a trial court commits error if it does not allow questioning when there are criminal charges pending against a witness because the witness has a vulnerable relationship with the State. See, e.g., Moreno v. State, 22 S.W.3d 482, 486 (Tex.Crim.App. 1999) (unadjudicated crimes admissible to show bias or interest); Carroll, 916 S.W.2d at 499, 501 (witness currently incarcerated and awaiting trial on pending criminal charges); Cooks v. State, 844 S.W.2d 697, 724-25 (Tex.Crim.App. 1992) (co-defendant had agreement with State in exchange for testimony), cert. denied, 509 U.S. 927 (1993). In contrast, if the State has no charges pending against one of its witnesses, then the trial court does not err in limiting the defendant's cross-examination about that witness's alleged bias. Carpenter, 979 S.W.2d at 635 (holding that pending federal criminal charges not proper areas of cross-examination because they did not show vulnerable relationship in state criminal case).
In this case, Moten attempted to demonstrate at trial that Thomas was biased or prejudiced in favor of the State because he had been charged with felony assault of an elderly person but pleaded guilty to misdemeanor assault. The trial court only allowed testimony showing that Thomas was convicted of a misdemeanor assault of a woman. Thomas testified outside the presence of the jury that he had been charged for the felony offense of injury to the elderly, but that the State agreed to reduce the charge to misdemeanor assault in exchange for his guilty plea. He testified that he was not offered a deal on the assault charge in exchange for his testimony against Moten and when his charge was reduced, neither the State nor his own attorney discussed the fact that he was a witness in this case.
More importantly, there is no evidence that there were any charges pending against Thomas at the time of Moten's trial, and there is no evidence he was on community supervision or serving time on the misdemeanor assault. Because Moten has made no showing that Thomas could have received some future benefit from the State, he failed to establish that Thomas had a vulnerable relationship with the State that would otherwise be the proper subject of cross-examination. Accordingly, the trial court did not abuse its discretion in limiting Moten's cross-examination.
Moten v. State, Nos. 2-99-309-CR 2-99-310-CR, at 15-18.
This court cannot say, having reviewed the record, that the jury might reasonably have found that the facts underlying Thomas's misdemeanor conviction and the disposition thereof established a motive for Thomas to favor the state in his testimony, or, that the limitation imposed on cross-examination was clearly prejudicial to Moten's defense. See Restivo, 8 F.3d at 278. Compare United States v. Landerman, 109 F.3d 1053 (5th Cir.), cert. denied, 522 U.S. 1033 (1997). Thus, the state courts' adjudication of Moten's claim did not result in a decision that was contrary to, or involve an unreasonable application of, clearly established federal law, or result 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).
3. Improper Jury Argument
In his second ground, Moten contends the state engaged in improper jury argument during the guilt/innocence stage of the trial. (Pet. at 7; Pet'r Mem. of Law at 8-10.) Specifically, he complains that the prosecutor improperly commented on his failure to present evidence by the following argument;
Let me ask you something. Do you remember during voir dire, I told you the State and the Defense have an equal right to subpoena. Did the Defense subpoena any witnesses from that area? . . . Any witnesses? You know that the girlfriend dropped him off at the hospital. And did the Defense subpoena the girlfriend? (4 Rep. R. at 123-24.)
Under Texas law, the state may not comment on the defendant's silence. TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 1979). A remark by the state that calls attention to the absence of evidence that could only be supplied by the testimony of the accused is an improper comment on the defendant's failure to testify. See Fuentes v. State, 991 S.W.2d 276, 275 (Tex.Crim.App.), cert. denied, 528 U.S. 1026 (1999).
The Second Court of Appeals determined that the state's remarks in this instance did not refer to any particular aspect of the case that only Moten's testimony could refute, and that the state specifically referred to the absence of testimony of persons other than Moten, such as his girlfriend. Because the state merely commented on Moten's failure to produce testimony other than his own, the prosecutor's remarks were not an improper comment on Moten's failure to testimony. Moten v. State, Nos. 2-99-309-CR 2-99-310-CR, at 18-20. In turn, the Texas Court of Criminal Appeals also considered and rejected the claim. Moten v. State, Nos. 786-01 787-01, PDR.
As a matter of state law, Moten provides no adequate reason to question the state courts' adjudication of this issue. Moreover, as pointed out by Cockrell, the denial of the claim by the state courts appears to comport with federal law on the issue. See, e.g., United States v. Robles-Vertiz, 155 F.3d 725, 731 (5th Cir. 1998); Nichols v. Scott, 69 F.3d 1255, 1284 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996); Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988), cert. denied, 490 U.S. 1075 (1989). Accordingly, this court cannot conclude that the state courts' adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or 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).
II. RECOMMENDATION
Moten'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 September 25, 2002. 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 unobjected to 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 September 25, 2002, 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.