Opinion
No. 4:01-CV-867-A
May 31, 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 Richard William Payne, TDCJ-ID #620984, 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 PROCEDURE HISTORY
In 1991 Payne was charged and convicted by a jury of possession of child pornography, state cause number 0449536D, promotion of child pornography, state cause number 0449537D, and sexual assault of a child under 17, state cause number 0450645D. (1Clerk's R. at 97; 2Clerk's R. at 101; 3Clerk's R. at 97) The jury assessed his punishment at five years' imprisonment and a $5000 fine, three years' imprisonment, and fourteen years' imprisonment and a $10,000 fine, respectively. (1Clerk's R. at 10; 2Clerk's R. at 10; 3Clerk's R. at 9.)
"1Clerk's R." refers to the clerk's record for trial court cause number 0449536D; "2Clerk's R." refers to the clerk's record for trial court cause number 0449537D; and, "3Clerk's R." refers to the clerk's record for trial court cause number 0450645D.
Payne appealed his convictions, and, on July 20, 1993, the Second Court of Appeals affirmed the convictions, but reversed and remanded the cases for a new punishment hearing. (1Clerk's R. at 11-17; 2Clerk's R. at 11-17; 3Clerk's R. at 10-16.) Payne v. State, Nos. 2-91-395-CR through 2-91-397-CR (Tex.App. — Fort July 20, 1993, pet. ref'd) (not designated for publication). Payne then moved the trial court to set bail, and, on July 15, 1994, the court reinstated his original bail in each case. (1Clerk's R. at 32; 2Clerk's R. at 57; 3Clerk's R. at 30.) After being released on bail, Payne fled the jurisdiction of the state court and was later arrested near Lubbock, Texas, in March 1996. (3Rep. R. of Trial on Punishment at 29.)
Following the second punishment trial on March 3, 1998, a jury assessed Payne's punishment in the cases at ten years' imprisonment and a $10,000 fine, ten years' imprisonment and a $10,000 fine, and twenty years' imprisonment and a $10,000 fine, respectively. (1Clerk's R. at 97; 2Clerk's R. at 101; 3Clerk's R. at 97.) Payne again appealed, but the Second Court of Appeals affirmed the trial court's judgments. Payne v. State, Nos. 2-98-123-CR through 2-98-125-CR (Tex.App.-Fort Worth July 29, 1999, pet. ref'd) (not designated for publication). His petition for discretionary review to the Texas Court of Criminal Appeals was subsequently refused on December 15, 1999. Payne v. State, No. 1820-99 (Tex.Crim.App. Dec. 15, 1999) (not designated for publication).
Thereafter, Payne filed a state application for writ of habeas corpus, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court on May 23, 2001. Ex parte Payne, No. 45,701-03, at cover (Tex.Crim.App. May 23, 2001) (not designated for publication). Payne 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 December 18, 2001. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when petition delivered to prison authorities for mailing).
Payne filed a previous federal petition for writ of habeas corpus pursuant to § 2254, in which he challenged his convictions for aggravated sexual assault of a child under 14, indecency with a child, and sexual performance by a child in state cause numbers 0382321D and 0476936D. That petition was denied by an order and judgment entered on October 31, 2001. Payne v. Cockrell, No. 4:00-CV-1811-Y (N.D. Tex. Oct. 31, 2001). In addition to the instant petition, Payne has one other currently pending federal petition for writ of habeas corpus, in which he challenges his convictions for aggravated sexual assault of a child under 14 and indecency with a child by contact in state cause numbers 0383212D and 0476935R. Payne v. Cockrell, No. 4:02-CV-106-A.
D. ISSUES
Payne raises the following issues in five grounds for relief:1. He was denied effective assistance of counsel.
2. Extraneous offense evidence was improperly admitted at his 1998 punishment trial.
3. The state trial court judges abused their "power of discretion."
4. There was no evidence to support his conviction for possession and promotion of pornography and the penal statute defining the offense is vague and overbroad.
5. The "syntactic nomenclature of the charge 'sexual assault'" implies a violent act and caused prejudice to him. (Pet'r First Addendum to Pet. at 7A-7G.)
E. RULE 5 STATEMENT
Cockrell believes that Payne has exhausted available state court remedies regarding certain claims presented in this federal petition and that he has failed to exhaust available state court remedies regarding other claims presented. She alleges, however, that it would be futile for Payne to attempt to exhaust all unexhausted claims at this time because said claims are procedurally barred. Thus, she does not move to dismiss on exhaustion grounds. (Resp't Answer at 7.)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. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first ground, Payne contends he was denied effective assistance of counsel because Sylvia Andrews, his trial counsel in the 1991 trial, (1) failed to object to the state's "admitted coaching of the complainant," (2) failed to object to the non-compliance with the accomplice witness rule, (3) failed to request a limiting instruction based on the noncompliance with the accomplice witness rule, (4) failed to object to admission of the "questionnaire" into evidence, and (5) failed to object to perjured testimony by the complainant. (Pet'r First Addendum at 7A-7B.)
He further contends he was denied effective assistance of counsel because Robert Ford, his trial counsel in the 1998 retrial on punishment and his appellate counsel, (1) failed to communicate with him and provide him with copies of records and documents pertinent to his appeals, (2) failed to present all available defensive issues, such as the "false-memory syndrome," perjured testimony of the complainant, and the complainant's affidavit of nonprosecution, (3) failed to object to the prosecutor's "obviously tremulous voice" during closing argument, (4) failed to object to noncompliance with the accomplice witness rule, (5) failed to request a limiting instruction based on the noncompliance with the accomplice witness rule, (6) failed to object to admission of the "questionnaire" into evidence, (7) failed to properly defend him, and (8) failed to object to extraneous offense evidence. (Id.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 122 S.Ct. 1175 (2002) (applying the Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 688. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688. An ineffective assistance of counsel claim is a mixed question of law and fact. Haynes v. Cain, 272 F.3d 757, 761 (5th Cir. 2001). Thus, where the claim has been reviewed on its merits and denied by the state courts, federal habeas relief will be granted only if the state court's decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court. Id.
Payne raised some of his ineffective assistance claims in the state habeas court, however, in light of the affidavits of Andrews and Ford concerning their representation of Payne, the court found that both counsel rendered effective assistance. (Resp't Answer at 9-11.) Ex parte Payne, No. 45,701-03, at 127-28, 147-56. Because those ineffective assistance claims have been reviewed on their merits and denied by the state courts, this court can grant federal habeas relief only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. Haynes, 272 F.3d at 761.
Having independently reviewed each of Payne's claims raised in state court in conjunction with the state court records, the adjudication of the claims does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard. Even assuming Payne could show that his attorneys' representation was deficient on one or more of the grounds given, his arguments fall short of satisfying the prejudice element of Strickland — i.e., that the result of the proceedings would have been different had his attorneys' performance not been deficient in those many respects. See Haynes, 272 F.3d at 762; Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Jones v. Jones, 163 F.3d 285, 304 (5th Cir. 1998), cert. denied, 528 U.S. 895 (1999); Wilkerson v. Whitley, 16 F.3d 64, 68 (5th Cir. 1994), cert. denied, 513 U.S. 1085 (1995).
The remainder of Payne's ineffective assistance claims were not presented to the state's highest court via petition for discretionary review or postconviction writ of habeas corpus and are, thus, unexhausted. 28 U.S.C. § 2254(b)(1)(A). Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. 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 court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). 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. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Thus, Payne seeks federal habeas relief on claims that were never made in the Texas courts, which renders the claims unexhausted. See Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
Payne cannot, however, return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas 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). Federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claims will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Payne has not given any explanation to excuse his default. Nor has he alleged and demonstrated that failure to consider the claims will result in a miscarriage of justice, i.e., that he is innocent of the crimes for which he was charged and convicted. Accordingly, the claims not exhausted in state court are procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
3. EXTRANEOUS EVIDENCE
In his second ground, Payne contends that extraneous offense evidence of his bail jumping negatively influenced the jury when assessing his punishment on remand. (Pet'r First Addendum at 7C-7D.) Payne argues that because extraneous offense evidence was inadmissible under Texas law in effect at the time of the commission of the offenses, such evidence should have been excluded. (Id.) Payne's trial counsel did not object to admission of the evidence regarding flight; thus, Payne presented this claim to the state courts in the context of an ineffective assistance claim on appeal and in his state writ application. In both instances, the state courts concluded that although counsel failed to object to admission of the evidence, the omission did not rise to the level of ineffective assistance as set forth in Strickland. Payne v. State, Nos. 2-98-123-CR through 2-98-127-CR; Ex part Payne, No. 45,701-03, at 151.
See Act of May 28, 1989, 71st Leg., R.S., ch. 785, § 4.04, 1989 Tex. Gen. Laws 3471, 3492, amended by Act of May 29, 1993, 73rd Leg., R.S. ch. 900, § 5.05, 1993 Tex. Gen. Laws 3589, 3762 (current version at TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (Vernon Supp. 2002)).
The state courts' adjudication of this claim does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard. Moreover, notwithstanding former article 37.07, § 3 of the Texas Code of Criminal Procedure precluding evidence of extraneous unadjudicated offenses during the punishment phase of a trial, it appears evidence of flight in avoidance of prosecution was permitted, even though it may have shown the commission of other crimes, so long as the flight was connected to the offense or offenses on trial. See Bigby v. State, 892 S.W.2d 864, 883 (Tex.Crim.App. 1994), cert. denied, 515 U.S. 1162 (1995); Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex.Crim.App. 1975); Gantz v. State, 661 S.W.2d 213, 219 (Tex.App. — San Antonio 1983, pet. ref'd).
4. Abuse of Power of Discretion
In Payne's third ground, he contends that Judge Perez, the state trial court judge presiding over the 1991 proceedings, and Judge Wisch, the state trial court judge presiding over the 1998 proceedings, abused their "power of discretion." He lists numerous instances in which each judge allegedly abused his discretion during the relevant state trial court proceedings. (Pet'r First Addendum at 7D-7F.) However, as Cockrell points out, most of the claims are conclusory and wholly unsubstantiated or procedurally barred. (Resp't Answer at 19-20.) 28 U.S.C. § 2254(b)(1)(A); Emery, 139 F.3d at 195; Nobles, 127 F.3d at 423; United States v. Jones, 614 F.2d 80, 82 (5th Cir.), cert. denied, 446 U.S. 945 (1980).
In both his state writ application and the instant federal petition, Payne raises the following complaints: (1) Judge Perez abused his discretion by demanding that he hire an attorney after posting bail, (2) Judge Perez abused his discretion by allowing the state to "coach" the complainant regarding where the aggravated sexual assault took place — i.e., in Tarrant County, (3) Judge Wisch abused his discretion by allowing the state to introduce extraneous offense evidence of flight and by allowing the prosecutor to use an "obviously fake tremulous voice" during closing argument, (4) both judges abused their discretion by allowing the state to introduce the "questionnaire" into evidence, (5) both judges abused their discretion by not giving an accomplice-witness instruction to the jury as it related to the testimony of the child victim, and (6) both judges abused their discretion by exhibiting hate and prejudice toward him and by failing to recuse themselves from his cases. (Pet'r First Addendum at 7D-7F) Ex parte Payne, No. 45,701-03, at 13-99.
The majority of the claims involve various evidentiary rulings under state law, which will mandate habeas relief only when the errors violate the federal constitution or are so extreme that they constitute a denial of fundamental fairness. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S. 1118 (1999). The latter requires that the wrongly admitted evidence play a crucial, critical, and highly significant role in the trial. Id. Payne has failed to show that the state courts' evidentiary rulings violated specific federal constitutional provisions or that the courts' rulings rendered his trial(s) fundamentally unfair for purposes of federal habeas relief. The remainder of the claims fail to raise a cognizable federal claim or are conclusory and unsubstantiated by the state court records or are unsupported in law. See 28 U.S.C. § 2254(a) (providing a state prisoner may bring a federal habeas petition "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United State"); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (holding mere conclusory allegations do not raise a constitutional issue in a habeas proceeding).
5. POSSESSION AND PROMOTION OF PORNOGRAPHY
In his fourth and fifth grounds, Payne contends that there was no evidence to support his conviction for possession and promotion of pornography and that the state penal statute defining the offense is vague and overbroad. (Pet'r First Addendum at 7F-7G.) These claims were not presented in state court and are, thus, unexhausted. 28 U.S.C. § 2254(b)(1)(A). As with his unexhausted claims under ground one, Payne cannot now return to the Texas courts to cure this deficiency under the abuse-of-the-writ doctrine. Ex parte Barber, 879 S.W.2d at 891 n. 1. Thus, Payne is ineligible for federal habeas relief on the claims save a showing of "cause and prejudice," or a "fundamental miscarriage of justice." O'Sullivan, 526 U.S. at 854 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495 (1986)). Payne has not given any explanation to excuse his default nor has he alleged and demonstrated that he is innocent of the charged offenses. Consequently, the claims are barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
6. Summary
In sum, Payne is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that Payne 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
Payne'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 June 21, 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 June 21, 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.