Opinion
CIVIL ACTION NO. 4:03-CV-911-Y
November 10, 2003
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 under 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 Steven Dean Passmore, TDCJ-CID #1024507, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Clements Unit in Amarillo, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
Ginger Crow was Passmore's common-law wife. (8 Rep. R. at State Ex. 23.) During an argument, which occurred in front of Crow's co-worker Michelle Brand at Crow's apartment, Passmore hit Crow on the head with the butt of a gun and then fatally shot her. (3 Rep. R. at 29-30, 37, 47, 50, 81; 4 Rep. R. at 101.)Passmore was indicted for murder. (State Habeas R. at 64.) At trial, Passmore did not deny that he shot Crow, but testified that the gun accidently discharged during a struggle. (5 Rep. R. at 77-80.) On October 6, 2000, a jury found Passmore guilty of murder and assessed his punishment at life confinement. (State Habeas R. at 65.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Passmore's petition for discretionary review. Passmore v. State, No. 2-01-020-CR (Tex.App.-Fort Worth Jan. 24, 2002, pets, ref'd) (not designated for publication). Passmore filed an application for state habeas corpus relief, challenging his conviction, which the Court of Criminal Appeals denied without written order. Ex parte Passmore, No. 55,630-01 (Tex.Crim.App. May 21, 2003) (not designated for publication). Passmore filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 5, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke answer the petition on October 6, 2003. On October 23, 2003, Passmore filed a memorandum of law in support of his petition, which expanded upon his arguments.
Although Passmore initially filed his federal petition in the United States District Court for the Northern District of Texas, Dallas Division, the petition was transferred to this division. 28 U.S.C. § 2241(d).
Although this memorandum appears to be a dilatory and bad-faith attempt to amend his petition to counter Dretke's assertions that Passmore's claims are conclusory, the memorandum will be considered because it is little more than a recitation of the arguments contained in his state habeas application, which Dretke has responded to. See FED. R. Civ. P. 15(a) (stating it is within a court's discretion to grant or deny leave to amend after a responsive pleading has been filed).
D. ISSUES
Passmore raises three issues:
1. The State committed misconduct by questioning witnesses about Passmore's extraneous offenses in violation of the trial court's rulings on the State's motions in limine.
2. Trial counsel was constitutionally ineffective.
3. He was denied the right to present a defense when the trial court failed to charge the jury on criminally negligent homicide.
E. RULE 5 STATEMENT
Dretke argues that one of Passmore's allegations directed at trial counsel's performance has not been exhausted and asserts that it has been procedurally defaulted; however, Dretke believes that Passmore's remaining allegations have been properly exhausted.F. DISCUSSION 1. Exhaustion
Dretke argues that Passmore has failed to exhaust his claim that counsel was ineffective for failing to subject the State's case to adversarial testing. Indeed, applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fishery. 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 state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 160 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988) (per curiam).
Passmore argues that counsel's other complained of deficiencies, when taken together, constitute counsel's failure to subject the State's case to adversarial testing. (Pet'r Reply at 1-2.) However, the state courts were not given a fair opportunity to address the claim merely by reviewing Passmore's other complaints about counsel's performance. Thus, this claim is unexhausted.
Passmore states that if it is determined that this allegation is unexhausted, he wants to delete this ground from his federal petition. (Id. at 2.) Accordingly, this claim is deleted.
Further, even if Passmore had not waived this argument, it would be procedurally barred from this court's 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).
2. 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 under a state court judgment 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 United States Supreme Court 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 precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see a/so Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).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 this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. 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. Grim. App. 1997).
3. Prosecutorial Misconduct
Passmore argues that he was denied due process and equal protection when the State elicited multiple instances of extraneous bad acts in violation of the trial court's limine ruling. (Federal Pet. at 7-7A; Pet'r Mem. in Supp. at 10-14, 17-18.) To merit habeas corpus relief, prosecutorial misconduct must have infected the trial with unfairness so as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987). In other words, the conduct must have rendered the trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 179-81 (1986). A trial will be deemed fundamentally unfair only in the most egregious situations and only if there is a reasonable probability that the verdict might have been different had the trial been properly conducted. Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000), cert. denied, 531 U.S. 1134 (2001); Ortega v. McCotter, 808 F.2d 406, 410-11 (5th Cir. 1987).
Passmore first complains of testimony the State elicited from him on cross-examination regarding what he did in his immediate flight from the murder scene. (5 Rep. R. at 129, 139, 141.) This was res gestae evidence that was admissible. TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (Vernon Supp. 2003); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App. 1972). Second, Passmore points to his testimony on cross-examination that he was a drug dealer, that he had assaulted Crow in the past, that he had tried to have affairs with other women, and about an incident three months before the murder where he was driving while intoxicated and fled the scene of the resulting accident. (Id. at 95-96, 101-08, 117, 124-25, 129, 151.) This evidence was admissible because Passmore had testified about these subjects during his direct examination and had opened the door to any related information. (Id. at 67, 71-72, 82, 84.) Schutz v. State, 957 S.W.2d 52, 71 (Tex.Crim.App. 1997). Finally, Passmore complains of the State's questions regarding his propensity to carry guns. (Id. at 95-101.) On direct examination, Passmore testified that the shooting was accidental (Id. at 79-80, 90); thus, the State could impeach him with his prior bad acts to prove the absence of accident or mistake. TEX. R. EVID. 404(b). Thus, this evidence was admissible and cannot support an allegation that its admission rendered Passmore's trial fundamentally unfair. Further, the trial court included a limiting instruction in the jury charge regarding the jury's consideration of extraneous-offense evidence. (Clerk R. at 45.)
One of Crow's co-workers also tesified that she had previously seen Passmore use physical force against Crow and stab her, which Passmore claims was also a violation of his due-process rights. (5 Rep. R. at 205.)
4. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST, amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Passmore's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Passmore asserts that trial counsel was constitutionally ineffective because he:
1. failed to familiarize himself with the rules pertaining to admission of extraneous-offense evidence and
2. did not call an independent expert witness to bolster Passmore's position that the shooting was an accident. (Federal Pet. at 7; Pet'r Mem. in Supp. at 19-27.)
For the following reasons, Passmore has failed to establish ineffective assistance as required by Strickland thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Passmore first argues that counsel was ineffective for failing to be familiar with the rules regarding admission of extraneous-offense evidence. (Pet'r Mem. in Supp. at 21-25.) As discussed above, the disputed evidence was admissible. Thus, counsel was not deficient for failing to object to its admission. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument). Although the State's method of questioning the witnesses about Passmore's prior bad acts might have been in violation of the trial court's limine ruling, Passmore cannot show how this rendered his trial fundamentally unfair; thus, Passmore cannot show prejudice either. Passmore additionally argues that counsel should have asked for a limiting instruction regarding the use of the extraneous offenses. (Pet'r Reply at 8-9.) Such an instruction was given. (Clerk R. at 45.) Further, because the evidence was admissible, any attempt by counsel to move for "procedural safeguards," such as a motion to disregard or a motion for mistrial, would have been futile. (Pet'r Reply at 8.)
Passmore next asserts that counsel should have called an expert witness to testify as to the position of Crow's body when Passmore shot her, which would have bolstered Passmore's contention that the shooting was accidental. (Pet'r Mem. in Supp. at 25-26.) Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001). For Passmore to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witness would have testified. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Passmore has failed to provide an affidavit or other evidence from the unnamed witness. The limited and conclusory information Passmore provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp.2d 398, 400 (N.D. Tex. 2001). Further, it appears that counsel elicited testimony from the State's witness that Crow's position when Passmore shot her was consistent with Passmore's version of the crime. (4 Rep. R. at 131-35.)
5. Jury Charge
Passmore finally argues that he was unconstitutionally denied the right to present a defense when the trial court failed to charge the jury on criminally negligent homicide. (Federal Pet. at 7; Pet'r Mem. in Supp. at 28-30.) In a noncapital murder case, the failure to give an instruction on a lesser included offense does not raise a federal constitutional issue. Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999). Thus, this claim is not cognizable in this action. 28 U.S.C. § 2254(a).
6. Summary
In sum, Passmore is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Passmore was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Passmore'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 in the United States District Court 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 1, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 1, 2003 to serve and file 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, the 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, is returned to the docket of the United States District Judge.