Opinion
NO. 3-00-CV-2027-G
February 1, 2001
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I. PROCEDURAL BACKGROUND
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Edwin Ogbolu is an inmate in the Texas prison system. Respondent Gary Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
Petitioner was convicted of second-degree felony theft and sentenced to 20 years confinement. The trial court also imposed a $10,000 fine and ordered petitioner to make restitution in the amount of $150,000. His conviction and sentence were affirmed on direct appeal. Ogbolu v. State, No. 05-97-00788-CR (Tex.App.-Dallas, June 24, 1999, pet. refd). The Texas Court of Criminal Appeals denied an application for writ of habeas corpus. Ex parte Ogbolu, No. 46, 295-01 (Tex.Crim.App. Aug. 16, 2000). Petitioner then filed this action in federal court.
Petitioner originally sought federal habeas relief in 1999. That case was dismissed without prejudice for failure to exhaust state remedies. Ogbolu v.Johnson, No. 3-99-CV-2155-G (N.D. Tex. Mar. 3, 2000).
II. ISSUES PRESENTED
Petitioner alleges that he was denied his right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Specifically, petitioner contends that his attorney: (1) failed to contact and interview potential defense witnesses; (2) did not object to the amount of restitution ordered by the trial court; (3) failed to object to the payment of restitution as a condition of parole; and (4) did not challenge the admission of certain documents under the "best evidence" rule.III. STANDARD OF REVIEW
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). Under the AEDPA, a petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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 state court 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must first demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhard v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). A petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
V. DISCUSSION
A brief overview of the evidence adduced at trial is necessary to the disposition of petitioner's claims. The record shows that petitioner was introduced to Reed Tetrick, owner of Silver Screen Cinemas, Inc., in 1992. Tetrick had been told that petitioner was a broker who could arrange financing for the acquisition of several movie theaters. On November 30, 1992, petitioner and Tetrick entered into an agreement whereby petitioner would obtain a $39 million loan commitment from Florida American Mortgage Company in exchange for a $10,000 fee and documentary letters of credit from Silver Screen. Petitioner agreed to secure the letters of credit for an additional $50,000 fee. The agreement provided that petitioner would repay Tetrick if the letters of credit were "not issued with satisfactory terms and conditions to [FAMC] within 10-14 business days from the date of release of the $50,000.00." See Ogbolu, No. 05-97-00788-CR, op. at 2.
Tetrick paid petitioner $49,995 in two installments on December 4 16, 1992. Shortly thereafter, FAMC refused to accept the documentary letters of credit. When Tetrick demanded the return of his money, petitioner said he could not repay the $49,995. Petitioner was subsequently charged and convicted of second-degree felony theft. Id.
A.
Petitioner first contends that his attorney failed to contact and interview two potential defense witnesses — Kizito Memeh and the Vice-President of the Bank of India. Memeh worked with petitioner and allegedly introduced him to Reed Tetrick. The Bank of India was "the lead bank in securing the documentary letter of credit" for Silver Screen. (Pet. Brief at 5).
Petitioner complained of his attorney's failure to interview Memeh on direct appeal. The court of appeals rejected this claim because petitioner had not shown that Memeh was available to be interviewed or could provide testimony favorable to the defense. See Ogbolu, No. 05-97| 00788-CR, op. at 9. Nor has petitioner shown that his attorney was ineffective for failing to interview the Vice-President of the Bank of India. To the contrary, defense counsel tried to contact this witnesses. Wes Reed, trial counsel for petitioner, testified by affidavit in the state habeas proceeding that:
I tried to contact a witness with the Bank of India who was not available and had returned to India. That witness's testimony would of [sic] been used to introduce a letter that was sent to the complaining witness concerning the business transaction with the Defendant. This letter was introduced into evidence as defense exhibit #1 through cross-examination of the complaining witness.
(St. Habeas Tr. at 30). The state court found that this testimony was credible and worthy of belief. ( Id. at 17). This finding is not contrary to clearly established established federal law or unreasonable light of the evidence presented in the state court. Petitioner's conclusory and unsupported assertions regarding the importance of this missing testimony do not justify federal habeas relief. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot even begin to analyze ineffective assistance of counsel claim without affirmative showing of missing evidence or testimony)
Petitioner also alleges chat his attorney failed to adequately "research and familiariz[e] himself with the laws pertaining to the case." (Pet. Brief at 5). This claim was not raised on direct appeal or collateral review in state court and therefore is unexhausted. Moreover, this conclusory assertion is wholly insufficient to support a claim for federal habeas relief. See Barnard v. Collins, 958 F.2d 634. 642 n. 11 (5th Cir. 1992), cert. denied, 113 S.Ct. 990 (1993) (habeas petitioner must show how alleged errors and omissions were constitutionally deficient).
B.
Petitioner also criticizes his lawyer for not objecting to the amount of restitution ordered by the trial court. Although the indictment charged petitioner with theft under $100,000 and the victim lost only $49,995, petitioner was ordered to make restitution in the amount of $150,000. He argues that counsel should have challenged the restitution order as being outside the property value range for second-degree theft.Under Texas law, the amount of restitution must be just and have a factual basis within the loss of the victim. Campbell v. State, 5 S.W.3d 693,696 (Tex.Crim.App. 1999). However, restitution is not restricted by the property value range for the charged offense. Id. at 698-700. The record shows that Reed Tetrick paid petitioner nearly $50,000 in connection with a bogus transaction to finance the acquisition of several movie theaters. (SF-Il 141-183). In order to obtain this money, Tetrick arranged for a loan and pledged $150,000 in collateral. (Id. at 161). Tetrick and his wife also quit their jobs in anticipation of the business opportunity. (Id. at 183). The trial judge considered all these facts in setting the amount of restitution. Specifically, the judge noted that Tetrick was "Out $150,000 of collateral he had to put up to get the $50,000. And all of that was directly caused by your deceit and fraud according to the jury." (SF-III 341) (emphasis added). In view of the evidence, there was no basis for counsel to object to the amount of restitution. This ground for relief should be overruled.
C. In a related argument, petitioner contends that his attorney failed to object to the payment of restitution as a condition of parole. At sentencing, the trial judge stated:
I'm going to assess your punishment at 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice. I am also going to award $150,000 in restitution to Mr. Reed Tetrick. I'm going to order that be paid pursuant to Article 42.037. That will become a condition of your parole should you ever get parole.
( Id. at 339-40) (emphasis added). Petitioner correctly points out that, under the law in effect at the time, only the Board of Pardons and Paroles could set the conditions of parole. See Ex pane Lewis, 892 S.W.2d 4, 6 n. 1 (Tex.Crim.App. 1994). Arguably, defense counsel should have objected to this improper statement by the trial judge. However, the written judgment does not make restitution a condition of parole. Since the terms of the judgment control, petitioner was not harmed by the failure of his attorney to object. This ground for relief should be overruled.
D.
Finally, petitioner claims that his lawyer should have challenged the admission of two facsimile documents under the "best evidence" rule. Rule 1002 of the Texas Rules of Evidence requires the admission of the original document to prove the content of a writing "except as otherwise provided in these rules or by law." TEX. R. EVID. 1002, formerly TEX. R. CRIM. EVID. 1002. Copies are admissible to the same extent as an original unless: (1) a question is raised as to the authenticity of the original; or (2) it would be unfair to admit the duplicate in lieu of the original. Id.
At trial, the state introduced facsimile copies of a letter agreement between Tetrick and petitioner and an affidavit provided by petitioner to Tetrick. (SF-Il 144-45, 153 St. Exh. 4 5). Tetrick testified that both exhibits were accurate copies of the original documents. ( Id. at 145, 153). He reiterated this testimony when questioned by defense counsel outside the presence of the jury. ( Id. at 14647, 153-54). Copies of these documents were clearly admissible under Rule 1002, and counsel was not ineffective for failing to object. This ground for relief is without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of petitioner's application for writ of habeas corpus in the above-styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass' n, 79 F.3d 1415, 1417 (5th Cir. 1996).