Opinion
Civil Action No. 3:01-CV-2227-D
May 15, 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 John Charles Murray ("Murray") is an inmate confined at the Wynn Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-TD) at Huntsville. Respondent is the Director of TDCJ-JD.
Statement of the Case: Murray is currently incarcerated pursuant to a judgment and sentence of the 292nd Judicial District Court of Dallas County, Texas, in Cause No. F-98-00953-RV, in which he was charged with the offense of aggravated sexual assault. After pleading not guilty, a jury found him guilty and thereafter assessed punishment at life imprisonment.
Petitioner's punishment was enhanced by a prior felony conviction. See Appl. No. 48, 201-01 at 000016-18. According to the record before the court, Murray was convicted on April 4, 1999, of a separate offense of aggravated sexual assault, docketed at F98-00954-R, in which a life term was also imposed.
Murray appealed his conviction which was affirmed by the Texas Sixth Court of Appeals on September 10, 1999 in an unpublished opinion. No. 06-98-00273-CR. Petitioner also filed a petition for discretionary review with the Texas Court of Criminal Appeals, which was refused on January 12, 2000. PDR No. 2053-99. On June 2, 2000, Murray filed a state application for writ of habeas corpus challenging his conviction pursuant to Texas Code of Criminal Procedure art. 11.07. Ex Parte Murray, Appl. No. 48,201-01. On December 27, 2000, the trial court, after obtaining an affidavit from Murray's trial counsel, James C. Belt, Jr. ("Belt"), regarding Murray's ineffective assistance of counsel claims, reviewed Murray's application, Belt's affidavit, and all the trial court records, and thereafter made findings of fact and conclusions of law. The Texas Court of Criminal Appeals subsequently denied Murray's application without a written order on the findings of the trial court without a hearing.
The records filed by the Respondent in the present action are somewhat confusing. Murray's art. 11.07 application includes pleadings filed on December 19, 2000 (No. 48, 201-01 at 003-15) which attack his conviction in F98-00954-RV. However, all other papers, including the findings of the trial court ( Id. at 0027-30), relate to Murray's conviction in No. F98-00953-RV, the conviction attacked in the present petition.
As an exhibit to her answer, Respondent attached a copy of a second article 11.07 application filed in the trial court on June 2, 2000, attacking No. F98-00953-RV ( See Ex. C). When this exhibit is considered together with Murray's pleadings in No. 48, 201-01, it is clear that the Clerk erroneously transmitted Murray's subsequently filed application attacking his conviction in F98-00954-RV, rather than his application filed on June 2, 2000, which was the subject of trial counsel's affidavit and the trial court's findings. This filing error is illustrated by the fact that the issues addressed in counsel's affidavit pertain to those asserted in Ex. C to Respondent's answer and that counsel's affidavit was executed more than two months prior to the application included in the record in No. 48, 201-01.
While it is clear that the record in No. 48, 201-01 contains clerical errors, since this court has an accurate copy of Murray's article 11.07 attacking his conviction in F98-00953-RV and the state courts have disposed of his claims relating to that conviction on the merits, it is unnecessary that a corrected record be filed.
In response to the instant petition and this court's show cause order, on February 26, 2002, Respondent filed an answer together with copies of Murray's prior state proceedings. It is not claimed that Murray has failed to exhaust state remedies and therefore his petition is before the court for review on the merits.
Findings and Conclusions :
Murray raises three grounds for relief. Two of the three grounds relate to ineffective assistance of counsel at trial, while the third relates to errors committed by the state habeas court, that is an alleged failure to resolve disputed factual issues in contravention of due process principles and a failure to render findings of fact and conclusions of law.
Murray also requests an evidentiary hearing, pursuant to 28 U.S.C. § 2254(d), due to the state court's alleged failure to resolve various disputed factual issues and to make findings of fact and conclusions of law. In light of the court's findings below, there exists no need to hold such a hearing.
With respect to Murray's first two grounds, 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)("[f]ederal 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).
In his first two grounds, Murray alleges that his attorney, James C. Belt, Jr. ("Belt"), was deficient in failing to procure forensic expert witnesses for the defense.
Specifically, Murray claims that his trial attorney was deficient in failing to call an expert witness to attack the reliability of the prosecution's DNA expert testimony that Murray's sperm was present in the vaginal swabs taken from the victim. Although Belt did not present any controverting expert testimony in presenting a defense, the reason he did not do so is clearly explained in his affidavit, provided in response to Petitioner's art. 11.07 application. See No. 48, 201-01 at 0031-32. According to the affidavit, Belt contacted a DNA expert who reviewed the records from the Southwestern Institute of Forensic Sciences who, in turn, was of the opinion that the conclusion reached by the prosecution's experts was correct. Thus, it is clear that counsel did pursue an investigation to determine if an attack could be mounted against the methodology and accuracy of the State's experts' conclusions.
The forensic evidence presented by the State is summarized in the Sixth Court of Appeals' opinion. No. 06-98-00273-CR at 6-8.
Murray further faults counsel for having failed to adduce testimony undermining the credibility and reliability of another of the State's experts, Mr. James Cron ("Cron"), presented during it's case-in-chief. Specifically, Cron testified concerning his analysis of a pair of boots recovered from Murray's residence as compared to footwear prints located at the crime scene. See SOF, Vol. 4 at 150 et. seq. In his testimony on direct examination, Cron opined that Petitioner's boots had made the impressions left at the victim's residence. Id. at 173-74. The record discloses that Belt conducted a thorough and probing cross-examination of Cron. In the course of the cross-examination, counsel referred to a report from the Southwestern Institute of Forensic Sciences in which an observer represented that no positive identification of the boot type could be effected. Id. at 182. Although it is clear that Belt had access to this report, it is not part of the habeas corpus record. However, Belt stated in his affidavit to the trial court that the report was not helpful to his defense. No. 48, 201-01, supra, at 0032.
Cron's testimony is summarized at pg. 9 of the opinion in No. 06-98-00273-CR, supra.
In addressing the issues raised in Murray's art. 11.07 application, the trial court determined that Belt's affidavit was true, correct, and dispositive of Murray's claims. See 48,201-01, supra, at 0028 ¶ 2. These findings are entitled to a presumption of correctness and establish that counsel's conduct exceeded the minimum standards imposed under the Sixth Amendment. Therefore, Murray cannot satisfy the "cause" prong of the Strickland test.
Moreover, it is clear that Murray cannot satisfy the "prejudice" prong either. "Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy." Wilkerson v. Cain, 233 F.3d 886, 892-893 (5th Cir. 2000) citing United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983). In Cockrell the Fifth Circuit further elaborated on this notion by stating that because "allegations of what a witness would have testified to are largely speculative, courts should view with great caution claims of ineffective assistance of counsel when the only evidence of a missing witness's testimony is from the defendant." 720 F.2d at 1427. Furthermore, "[i]n order for the [petitioner] to demonstrate the requisite Strickland prejudice, the [petitioner] must show not only that this testimony would have been favorable, but also that the witness[es] would have testified at trial." Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985), citing Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981). Since Murray has not presented affidavits of any persons, which reflect opinions contrary to those of the State's DNA witnesses and that of James Cron, together with the fact that such persons would have testified at trial, he can show no prejudice.
To the extent that Murray's third ground for relief relates to alleged errors which occurred in the state court habeas proceedings — failure to hold a evidentiary hearing to resolve disputed factual issues and failure to render findings of fact and conclusions of law —, such complaints relate to a matter of state law and, as such, are not cognizable in a federal habeas petition. See Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984)([i]nfirmities in state habeas proceedings do not state a claim for federal habeas corpus relief"); Tijerina v. Estelle, 692 F.2d 3, 5 (5th Cir. 1982). Moreover, a state's disposition of issues in a habeas corpus proceeding does not require a live evidentiary hearing. See Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990).
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.