Opinion
Civil Action No. 4:03-CV-1471-A, Consolidated with Civil Action No. 4:03-CV-1472-A.
April 28, 2004
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 Arthur Uewayne Polk, TDCJ-ID #933223, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In December 1999 Polk was charged by separate indictment with the murder of Bobby Whitehead and the attempted murder of Nicole Sillers. (1State Habeas R. at 57; 2State Habeas R. at 53.) A jury was empaneled, and Polk's trial on the merits began on June 26, 2000. The factual and procedural background of the case set forth by the Second District Court of Appeals is as follows:
Polk and Bobby Whitehead were business associates and owned an entity known as Pawn Mart. Polk also owned property in Colorado, and he transferred title of it to Whitehead to obtain a bank loan for remodeling costs. The Colorado property was also encumbered by an independent mechanic's lien. Polk later filed for bankruptcy.
On August 16, 1999, Polk borrowed $32,900 from Whitehead to cover the closing of his mother's house. Polk's wife transferred some Pawn Mart stock to Whitehead as collateral, and Polk gave him a post-dated check dated for August 20, 1999. The check was cashed on August 23, 1999.
Polk testified that on August 17, 1999, Whitehead said he was going to take the Colorado property because the deed was in his name. Later, according to Mrs. Polk, Whitehead called Polk at his house and spoke to Mrs. Polk. Mrs. Polk testified that Whitehead was angry about the mechanic's lien on the Colorado property. During the conversation, Whitehead referred to the property as his house, and these statements upset her. When Polk came home, she was crying, and she told him that Whitehead had learned about the lien and that he was angry about it.
After talking to his wife, Polk testified that he went to Whitehead's house to retrieve his wife's stock. Before leaving, however, he attempted to contact Whitehead twice by telephone. Also, on the way to Whitehead's house, he stopped off at a grocery store to buy tomatoes; he occasionally brought tomatoes to Whitehead from his mother's garden. In the bottom of the box, underneath the tomatoes, Polk hid a gun.
When Polk arrived at Whitehead's house, Whitehead's fifteen-year-old girlfriend, Nicole Sillers, was there too. Polk testified that when he arrived he and Whitehead went into the kitchen. In the kitchen, he told Whitehead that he wanted his wife's stock back. According to Polk, Whitehead asked him if he was making a threat and then Whitehead threatened to kill him.
Polk stated that Whitehead then bent over to open a drawer. Polk thought he was getting a gun, so he shot him. Polk testified that when he turned around, Sillers was pointing a gun at him. He told her to put the gun down, and she obeyed but then picked it up again and ran away. Because he was worried she would shoot him, he shot her in the leg. Whitehead died from multiple gunshot wounds.
Polk was arrested and charged with murder, attempted capital murder, attempted murder, and aggravated assault with a deadly weapon. Polk pleaded not guilty to the offenses, and the jury found him guilty of murder and aggravated assault with a deadly weapon. He was sentenced to seventy-five years' imprisonment for the murder and twenty years' imprisonment for the aggravated assault.Polk v. Texas, Nos. 2-00-280-CR 2-00-281-CR, slip op. at 2-4 (Tex.App.-Fort Worth Jan. 24, 2000) (not designated for publication) (footnote omitted). The Second District Court of Appeals affirmed the trial court's judgments on January 24, 2002. Id. at 20. The Texas Court of Criminal Appeals subsequently refused Polk's petitions for discretionary review on August 21, 2002. Polk v. Texas, PDR No. 407-02 408-02. Polk did not seek writ of certiorari. (Federal Petition at 3.)
Polk filed two state applications for writ of habeas corpus, one for each conviction, raising the ineffective assistance claim presented herein, which were denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court on December 10, 2003. Ex parte Polk, Application Nos. 57,264-01 57,264-02. Thereafter, Polk filed two federal petitions for writ of habeas corpus, one for each conviction, in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 15, 2003. The two actions were consolidated by order dated January 26, 2004. Dretke has filed an answer with supporting brief and documentary evidence, to which Polk has replied.
See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In one ground, Polk alleges that he was denied effective assistance of counsel during the punishment phase of trial because counsel failed to investigate and subpoena twenty "readily available" family members, friends, and business acquaintances as character witnesses in mitigation of punishment. (Federal Petition at 7.)
E. RULE 5 STATEMENT
Dretke believes that Polk has sufficiently exhausted his state remedies with regard to the claim presented as required by 28 U.S.C. § 2254(b) (c), and he does not move for dismissal on exhaustion grounds. (Resp't Answer at 2.)
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). 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.
The Act further requires that 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). Typically, 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. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Ineffective Assistance
Polk contends he received ineffective assistance of trial counsel because counsel failed to investigate and subpoena twenty available character witnesses during the punishment phase of trial in an effort to mitigate punishment. A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI, XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. Strickland, 466 U.S. at 668. To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced — i.e., that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. In the non-capital sentencing context, to show prejudice the petitioner must demonstrate a reasonable probability that but for counsel's errors his sentence would have been significantly less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001); Spriggs v. Collin, 993 F.2d 85, 88 (5th Cir. 1993).
In evaluating an ineffective assistance claim, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Strategic choices made by counsel after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690. Further, where, as here, a petitioner's ineffective assistance claim has been reviewed on the merits under the Strickland standard and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of Strickland, or if the state courts' decision is based on an unreasonable determination of the facts in light of the evidence presented. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002).
Polk was represented at trial by retained counsel William Magnussen and Ward Casey. Ward Casey is now deceased. (1 State Habeas R. at 46.) Polk raised his ineffective assistance claim in his postconviction state writ applications, and, in support, presented some eighteen affidavits of various family members, business acquaintances, and friends indicating that had they been subpoenaed and/or called to testify, they would have testified favorably as to Polk's character as a good person, an honest, hard-working businessman, a family man, and a caring friend who often helped those in need. (1 State Habeas R. at 11-28.) After holding a hearing by affidavit, the state trial court entered findings of fact refuting Polk's allegation of ineffective assistance. (1 State Habeas R. at 44-52, 56.)
In his affidavit, Magnussen averred:
I have read the Writ of Habeas Corpus filed by Mr. Polk. I do not recall any specific conversations with Mr. Polk about calling witnesses at his punishment hearing but I am sure that Ward Casey and I discussed it with him and made the decision not to call witnesses. I feel sure of this because Mr. Polk was involved in all decisions made regarding the trial of this matter. If Mr. Polk had insisted that we call witnesses, I know that Mr. Casey and I would have done it even if we felt that it was not to his benefit.
I know that some of the people who signed affidavits about their being willing to testify if called were in the courtroom during the trial and others testified during the trial. I do recall that Mr. Polk did not want his parents or family involved in his trial as he felt that it would be harmful to them. If Mr. Polk had insisted that we call witnesses, we would have called his wife and several of his friends that were available.
Some of the people who signed affidavits are people whose names I have never heard before now.
I also recall that we had some concerns about questions that the DA could have brought up in regards to Mr. Polk's past actions and his quick temper on some occasions if we had put on character witnesses during his punishment trial.
I know that Mr. Casey and I would not have put ourselves in the position of going against the client's instructions if he had directed us to call witnesses. We did what we thought was best at the time. (1State Habeas R. at 44-45.)
Based on the affidavit, in conjunction with certain trial testimony, the trial court expressly found:
. . .
3. Defense counsel does not recall any specific conversations with [Polk] about calling witnesses at his punishment hearing, but is certain that this topic was discussed with [Polk] because [Polk] was involved in all trial decisions.
4. [Polk] did not want his parents or family to testify because he felt their participation would be harmful to them. In addition, counsel does not recall [Polk] mentioning the names of several of the individuals from whom he obtained affidavits.
5. Counsel was concerned that the State could cross-examine character witnesses about [Polk's] past actions and his quick temper. For example, during the trial on guiltinnocent, Deborah Whitehead, the victim's ex-wife, testified that she was present when [Polk] beat up his wife, Peggy Ann Polk at a party. She also testified about his derogatory comments toward women. In addition, she indicated that on a trip to Thailand, she was present when [Polk] intimated to the victim that [he] drove the getaway car in the Cullen Davis murder case.
6. Counsel is certain that he and Mr. Casey acted in [Polk's] best interests and that they would not have gone against [Polk's] instructions if he had directed them to call witnesses. (1State Habeas R. at 47.)
The trial court concluded that, "[g]iven the nature of the testimony of Deborah Whitehead, it was reasonable for defense counsel to determine that the potential benefits of calling witnesses at sentencing was outweighed by the risk of unfavorable counter-testimony." ( Id. at 48.) It further concluded that, even if counsel's conduct was deficient, "[g]iven the negative testimony elicited by the State during the trial on guilt-innocence and the very real potential that the State would have delved further into these events at a sentencing hearing, [Polk could not] show that there was a reasonable probability that the outcome of the sentencing hearing would have been different had defense counsel chosen to call character witnesses." ( Id.) As previously noted, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions of law and denied Polk's application for state habeas corpus relief.
Having independently reviewed Polk's claim, and applying the appropriate deference to the state courts' adjudication of the claim, it cannot be said that the state courts' application of Strickland's attorney-performance standard was objectively unreasonable, or that the state courts' decision is based on an unreasonable determination of the facts in light of the evidence before the state courts. See Bell, 535 U.S. at 698. The trial court apparently accorded credibility to counsel's affidavit, and this credibility determination is entitled to a presumption of correctness. See Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997). Thus, assuming counsel's testimony to be true, the issue of whether to call character witnesses was discussed with Polk and rejected by counsel either on Polk's instructions or as a matter of trial strategy, notwithstanding the fact that various family members, friends, and business acquaintances were apparently willing and able to testify. (1 State Habeas R. at 27.) Decisions based on a client's specific instructions do not constitute ineffective assistance of counsel. See Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir. 1984). Nor do tactical decisions constitute ineffective assistance of counsel even if the court may disagree with the strategy employed. See Henderson v. Cockrell, 333 F.3d 592, 599 (5th Cir. 2003), cert. denied, 124 S.Ct. 1170 (2004); Williams v. Maggio, 679 F.2d 381, 392 (5th Cir. 1977). Failure to present mitigating evidence if based on an informed and reasoned practical judgment, is well within the range of reasonable professional conduct not to be second-guessed. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). While counsel could have called one or more character witnesses in an attempt to mitigate punishment, it appears counsel had sound strategic reasons for not doing so. As recognized by counsel, calling character witnesses may have backfired. (1State Habeas R. at 44.) Moreover, in light of the particular circumstances of the offenses, Polk cannot establish a reasonable probability that had counsel presented character evidence his sentences would have been significantly less harsh.
Of the eighteen affidavits presented by Polk in the state habeas proceedings, seven of the affidavits were by family members. (State Habeas R. at 11, 12, 13, 15, 22, 26, 28.) The remaining affidavits were by friends and business acquaintances. Two of the individuals did not indicate in their affidavits that they would have been willing and able to testify at trial. ( Id. at 16, 23.) As previously noted, the remaining individuals would have testified essentially to Polk's character as a good person, an honest, hard-working businessman, a family man, and a caring friend who often helped those in need.
II. RECOMMENDATION
Polk'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 May 19, 2004. 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 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 May 19, 2004, 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, a 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, be and hereby is returned to the docket of the United States District Judge.