Opinion
No. 3-00-CV-1486-L
November 27, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
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 follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner, a state inmate, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner is in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
III. PROCEDURAL HISTORY
On January 15, 1998, petitioner was convicted by a jury of aggravated robbery. (Pet. at 2; St. Hab. Tr. at 61). Petitioner was sentenced to 10 years imprisonment. (Pet. at 2; St. Hab. Tr. at 61). On April 28, 1999, the Fifth District Court of Appeals affirmed his conviction, as reformed to properly calculate time served. Jones v. State of Texas, No. 05-99-00220-CR (Tex.App.-Dallas 1999, no pet.). Petitioner did not file a petition for discretionary review. (Resp. Ex.).
On January 18, 2000, petitioner filed a state petition for writ of habeas corpus. Ex parte Pedroza, Application No. 45,150-01. On May 10, 2000, the Texas Court of Criminal Appeals denied the petition without written order on the findings of the trial court. Id. at cover.
On July 10, 2000, petitioner filed this petition for writ of habeas corpus. In four grounds for relief, he contends his counsel was ineffective for: (1) failing to properly request a jury charge on the lesser included offense of aggravated assault; (2) refusing to file a motion for rehearing on appeal; (3) failing to object to the prosecutor's improper statements; and (4) not challenging on appeal the finding that a rock was a deadly weapon.
IV. FACTUAL BACKGROUND:
Jason Trevino testified that late at night on August 22, 1997 he and a friend were driving from a convenience store parking lot when a man threw a bottle at his car, hitting it. (Trial Tr. 3 at 97-99). The man got into a car with three other men. The four men followed Trevino out of the parking lot. ( Id. at 100-01). Trevino quickly pulled into another parking lot, and the four other men followed him. ( Id. at 101-02). Trevino stopped, got out of his car, and threw a bottle at the other car. ( Id. at 104). One of the men got out of the car and approached Trevino. Trevino hit the man in the face, knocked him down, and jumped on him. ( Id. at 105). The other men got out of the car and jumped on Trevino. They beat Trevino severely, pounding him with a large rock and inflicting cuts to his head, arm, and chest requiring medical attention. ( Id. at 106-08). The four men tore Trevino' s watch, bracelet, and necklaces off him. ( Id. at 110-11). The police officers investigating the scene of the robbery found the windows in Trevino's car bashed in and a bloodstained rock inside the car. (Trial Tr. 3 at 42-43, 47). The officers and the doctor who treated Trevino testified the rock was a deadly weapon. ( Id. at 51-52, 86).
Mesquite Police Officer J.W. Alexander stopped petitioner later that night for speeding. (Trial Tr. 3 at 15-17). Alexander noticed blood on petitioner's hands. ( Id. at 15-16, 19-20). Petitioner, the driver of the car, had Trevino' s gold necklace in his pocket. (Trial Tr. 4 at 47-48). A passenger had Trevino's gold bracelet and watch in his pocket. ( Id. at 8).
Petitioner testified he was inside the convenience store when Trevino arrived and he did not see anyone throw a bottle at Trevino's car. (Trial Tr. 4 at 54-57, 61-62). Petitioner, and the three men with him, followed Trevino out of the convenience store's parking lot. Trevino slowed down and blocked their way. ( Id. at 58-61). When Trevino pulled into another parking lot, petitioner, who was driving, followed to see what Trevino wanted. ( Id. at 58-63). According to petitioner, Trevino got out of his car and threw a bottle through petitioner's windshield. ( Id. at 64-65). The three men with petitioner got out of the car and approached Trevino. ( Id. at 65). Trevino attacked one of them, and the other two then attacked Trevino. ( Id. at 66-68). Petitioner was not involved because he stayed in the car sweeping up broken glass. (Id. at 68). After a few minutes, he got out of the car and started pulling his friends off Trevino, trying to end the fight. ( Id. at 70). As they returned to their car, petitioner picked up a gold necklace from the ground and put it in his pocket, thinking it belonged to one of his friends. ( Id. at 72-73).
V. STANDARD OF REVIEW
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254 provide:
An application for 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 the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus 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 from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id.
This amendment applies to all federal habeas corpus petitions which are adjudicated on the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049 (1997). The petition in this case is subject to review under the AEDPA. Additionally, under section 2254(d), a presumption of correctness must be accorded findings of fact made by a state habeas court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation omitted).
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Applicable Law
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. amend VI; Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain post-conviction relief due to ineffective assistance of counsel, a defendant 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). The defendant must first demonstrate that counsel's performance fell below an objective standard of reasonable professional service. Id., 104 S.Ct. at 2064. He then must show that this deficient performance prejudiced the defense such that the outcome of the trial would have been different. Id. 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 defendant 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).
B. Discussion
Petitioner first complains that his counsel failed to properly request a jury charge on lesser included offenses. The Court initially notes that petitioner does not identify the lesser offenses which he believes should have been charged or why the jury should have been charged on those offenses. This claim fails on that basis alone. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000) (conclusory allegations do not raise constitutional issue in federal habeas proceeding).
Petitioner does assert in his state habeas that counsel should have requested the jury be charged on theft, robbery, aggravated assault and assault. (St. Hab. Tr. at 11). A defendant is not entitled to an instruction on a lesser included offense unless the evidence is sufficient to allow the jury to find him guilty of the lesser offense, yet acquit him of the greater. See United States v. Bailey, 111 F.3d 1229, 1238 (5th Cir.), cert. denied, 118 S.Ct. 327 (1997); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994) (same). The state habeas court found that the evidence did not justify a charge on those lesser included offenses because:
If [petitioner's] testimony were to be believed he was not involved in the beating of [Trevino] nor did he take any of [Trevino's] property. This testimony eliminates all the lesser included offense charges he requested. The undisputed testimony at trial was that the rock used to beat the victim was a deadly weapon therefore [petitioner] was not entitled to a charge on robbery. Likewise, the fact that [petitioner] took the victim's jewelry in the course of the beating meant that this was not aggravated assault or simple assault. The evidence in this case did not allow for the lesser included offense charges alleged in this writ. Counsel was not ineffective in failing to request the charges.
(St. Hab. Tr. at 46). A review of the evidence outlined above reveals that the state court's determination relies on a clearly reasonable interpretation of the law and the application to the facts of this case. Accordingly, this Court is bound by the state court's finding. Petitioner has not shown that counsel was deficient for failing to request a jury charge on charges unsupported by the evidence.
Petitioner next asserts that his attorney should have filed a motion for rehearing on appeal. He argues counsel should have challenged the reliance by the appellate court on "[t]hree key factors of evidence." (Petition at 7). Petitioner does not, however, identify the allegedly key evidence. His conclusory allegation is insufficient to merit relief. See, e.g., 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). Moreover, a criminal defendant is not entitled to counsel for a discretionary appeal Ross v. Moffit, 417 U.S. 600, 610, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). Because petitioner was not entitled to representation on a discretionary appellate motion, he cannot claim that counsel's failure to file said motion deprived him of the effective assistance of counsel. See Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000), cert. denied, 531 U.S. 1167, 121 S.Ct. 1129. 148 L.Ed.2d 995 (2001) (counsel not ineffective for failing to file petition for rehearing to appellate court because right of appeal does not include petition for rehearing).
Petitioner also claims that counsel failed to object to the prosecutor's improper statements during closing argument. Once again, petitioner fails to identify the statements in his federal habeas petition. His allegation alone is, therefore, insufficient. In his state habeas application, however, petitioner points to the following statements by the prosecutor, Mark Moffitt:
And remember what aggravated robbery is, folks. If this man were just to watch an aggravated robbery happening, he has knowledge that, hey, they're beating this guy with a rock. They are grabbing his chains.
And guess what? I'm going to be the getaway driver. Because you heard him say, he was driving to get away, period. There's aiding and assisting an aggravated robbery right there, folks.
THE COURT: Excuse me just a moment. Let me see the lawyers up here.
(Whereupon, discussion was conducted at the side of the bench out of the hearing of the jury, defendant or reporter.)
THE COURT: Disregard that last statement from the prosecutor. That knowing that a crime is going on and then driving somebody away makes someone guilty as a party to an offense, that's incorrect. Disregard it.
MR. MOFFITT: Look at the charge if you will. It says: In the course of committing theft. It says: Before, during or in the immediate flight thereof. If you aid another person in the commission of that offense.
You read that to yourself because that's the law right there. The Judge is giving you the law and that's what it says.
So you look at this person and you decide to yourself if he's the getaway driver. If he is looking at these people. He is watching it and he's participating by what? By aiding the people in the commission of this offense, by being the getaway driver.
Do you think that he drove up there —
THE COURT: Just a moment, Mr. Moffitt. I told you not to argue that. I told you that is incorrect. So move on to something else. Disregard those last statements. Just move on to something else.
MR. MOFFITT: Maybe I can make it clearer. You can believe he's the getaway driver. The immediate flight is evidence of guilt. Just like a bank robber. The getaway driver — that's evidence of guilt.
THE COURT: Excuse me. Just a moment. Let me clarify this and make this perfectly clear one time. A person is a party to an offense, as I have read here in the law, if acting with intent to promote or assist the commission of an offense. Only if they are acting with the intent to promote or assist the commission of the offense.
Now, you've got to look at it and decide, is merely driving away — and nothing more — does that arise to that?
Now, get off this. Let's move on.
(Trial Tr. 3 at 121-23). Petitioner is correct that his attorney did not object to the improper argument. The record clearly reveals that such an objection was unnecessary because the trial judge intervened on his own and instructed the jury to disregard the improper statements. The failure of counsel to object, therefore, resulted in no prejudice to petitioner.
Petitioner finally maintains that his attorney should have argued on appeal that the finding he used a deadly weapon was unreasonable. He asserts that the evidence failed to prove that the rock was used against the victim, rather than by the victim. This Court concludes otherwise. The victim, Jason Trevino testified that he was beaten with a large rock, resulting in cuts to his head, arm, and chest. (Trial Tr. 3 at 106-08). Both a police officer and the doctor who treated Trevino testified the rock was a deadly weapon. ( Id. at 51-52, 86). Petitioner's version of events provides no contrary evidence regarding who used the rock. Rather, he testified that he was merely a bystander. (Trial Tr. 4 at 68-70). Thus, petitioner has failed to identify a basis on which counsel could have appealed the deadly weapon finding. This claim is without merit and should be denied.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2254 be denied with prejudice for failure to make a substantial showing of the denial of a federal right.
DATED: November 27, 2002.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (101) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation 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, any failure to file written objections to the proposed findings, conclusions and recommendation 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) (en banc).