Opinion
Civil Action No. 4:01-CV-767-A
April 10, 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 Title 28 of the United States Code § 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 Title 28 of the United States Code § 2254.
B. PARTIES
Petitioner Michael Dean Porter, TDCJ-ID #848692, 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
Porter was charged with aggravated sexual assault and aggravated robbery. (Clerk's R. at 3.) At trial, the victim, R.C., testified that she met and began dating Porter in May 1997. (4 Rep. R. at 15.) Several months later, the two agreed to break up, and R.C. resumed a relationship with her former boyfriend, Gene Crane, who worked with R.C. at a printing company. ( Id. at 15-17.) Later that week, Porter appeared at R.C.'s apartment and began beating on the door and the bedroom window. ( Id. at 16-17.) R.C. allowed him in, and Porter demanded that she tell Crane to leave or he would hurt them both. ( Id. at 19.) After Crane left, Porter grabbed R.C.'s throat, pulled a knife out of his pocket, held it to her throat, and told R.C. that he was going to kill her. ( Id. at 20.)
R.C. persuaded Porter to let her take her two children to her sister's house. ( Id. at 21-27.) During the drive to her sister's house, Porter kept the knife with him or on the dash of the car. ( Id. at 25-26, 104.) After dropping off the children, Porter told R.C. to stop at a liquor store, where he bought a bottle of tequila at the drive-through window. ( Id. at 27-28.) Back at R.C.'s apartment, Porter told R.C. to take her clothes off and kneel down with her back to him. ( Id. at 29-30.) He pulled her neck back, put the knife to her throat, and threatened that he was going to kill her slowly. ( Id. at 30.) Porter then forced the bottle of tequila into R.C.'s mouth and poured tequila down her throat until she gagged, became "light-headed," and eventually passed out ( Id. at 31-32, 81-84.)
When R.C. woke up, Porter was having sexual intercourse with her in bed. ( Id. at 33.) Porter finished and left the room, but returned and had anal intercourse with R.C. ( Id. at 35, 87-89.) Afterwards, R.C. pretended to be asleep. ( Id. at 37.) Porter pulled her off the bed onto the floor and poured water on her face until she gasped for breath. ( Id.) The two then struggled on the floor, and Porter hit her with a house shoe. Porter ordered her to take a shower and get dressed. ( Id. at 38.)
After R.C. showered, her pager went off, and Porter suspected it was Crane paging her from work. He drove R.C. in his van to a pay phone, where he dialed R.C.'s work number but got no answer. ( Id. at 42-43.) While in the van, Porter kept the knife with him or on the dash of the vehicle. He then drove to R.C.'s bank and used her ATM card and PIN number to withdrew money from her account. ( Id. at 43-44.) Thereafter, Porter drove to a nearby store and bought R.C. something to drink. ( Id. at 45-46.) Before getting out of the van, he told R.C., "I know you are not going to do anything stupid." ( Id. at 46.) Finally, he drove them back to R.C.'s apartment, where R.C. escaped and ran for help. ( Id. at 46-49.)
Porter gave a written statement to police admitting to going to R.C.'s house and threatening her with a knife. (4 Rep. R. at 205.) According to his version of events, however, he and R.C. had consensual sex. ( Id.) He told police that he was on medication, that he had "mood swings," and that he was seeing a therapist. ( Id. at 206.) Porter also testified at trial, where he admitted that he was angry when he found Crane at R.C.'s apartment, that he "put [his] hand on [R.C.'s] throat," that he pulled his knife on her, and told her to get Crane out of the apartment. (5 Rep. R. at 21-22, 61.) His testimony also paralleled R.C.'s regarding the sequence of events that took place thereafter, and he admitted that he held the knife to R.C.'s throat a second time at her apartment and told her to drink the tequila. ( Id. at 49.) He said that R.C. voluntarily drank tequila until she got sick and vomited. ( Id. at 22-25.) He then helped R.C. into her bedroom to lie down. Later, he went into the bedroom to check on her, and they engaged in consensual sex. ( Id. at 26, 70-73.) He did, however, concede that R.C. could have had sex with him because she was afraid of him as a result of the events of the day. ( Id. at 74-75.) According to Porter, R.C. agreed to his withdrawal of money from her account as partial payment of money he had previously loaned her for car repairs. ( Id. at 28-29.)
The jury found Porter guilty of aggravated sexual assault and assessed his punishment at 36 years imprisonment. (Clerk's R. at 84-85.) The jury found him not guilty of aggravated robbery. ( Id.) Porter appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on October 28, 1999. Porter v. State, No. 2-98-533-CR (Tex.App.-Fort Worth Oct. 28, 1999, pet. ref'd) (not designated for publication). On March 15, 2000, the Texas Court of Criminal Appeals refused Porter's petition for discretionary review. Porter v. State, No. 033-00 (Tex.Crim.App. Mar. 15, 2000) (not designated for publication).
Porter filed a state application for writ of habeas corpus challenging his conviction, which the Texas Court of Criminal Appeals denied without written order. Ex parte Porter, No. 49,691-01, at cover (Tex.Crim.App. July 25, 2001) (not designated for publication). Porter 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 August 19, 2001. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding prose habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Porter raises the following claims:
1. The trial court erred by restricting his testimony regarding his criminal record.
2. The trial court erred by failing to instruct the jury to disregard a question by the prosecutor after sustaining a defense objection to the question.
3. He received ineffective assistance of trial counsel.
E. RULE 5 STATEMENT
Cockrell believes that Porter has sufficiently exhausted available state remedies on the issues presented and, thus, does not move for dismissal on this ground. (Resp't Answer at 3.)
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. 28 U.S.C. § 2254(e)(1). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. 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).
1. Exclusion of Testimony and Motion to Disregard
In his first ground, Porter argues that the trial court erred by restricting his testimony concerning his criminal record when his credibility and character were at issue with the jury. (Federal Pet. at 7 Mem. at 1-2.) During direct-examination, Porter testified that he had never been convicted of a felony in Texas or any other state. (5 Rep. R. at 17.) His defense attorney then asked Porter if he had been convicted of a felony in federal court, and the state objected on relevancy and bolstering grounds. ( Id.) The trial court sustained the state's objection and instructed the jury to disregard the answer to the question.
The record does not reflect that Porter actually answered the question before the state's objection and the trial court's instruction to disregard. (5 Rep. R. at 17.)
Porter argues that the prosecutor was "painting an evil and dangerous picture [of him] in the minds of the jurors," and his response to the question regarding his criminal history would have "erased the bias." (Mem. at 1.) Porter cites the court to various Texas Rules of Evidence in support of the admissibility of the evidence and generally asserts that exclusion of the evidence violated his rights under due process and equal protection. ( Id. at 2.) Porter did not, however, raise his constitutional claims in the state courts. (Appellant's Br. at 3-5; PDR at 1; State Habeas R. at 12-13.)
Similarly, in his second ground, Porter argues that the trial court erred when it denied his motion to instruct the jury to disregard the prosecutor's question regarding psychiatric hospitalization. (Federal Pet. at 7 Mem. at 2.) During cross-examination, the prosecutor questioned Porter about the number of times a week he drank alcohol. Porter stated that he did not drink often. (5 Rep. R. at 55.) The prosecutor then asked Porter, "Do you remember checking into the Millwood Psychiatric Hospital?" The defense objected, and the objection was sustained by the trial court. ( Id. at 55.) The court, however, denied Porter's request for an instruction to disregard. ( Id.) Porter generally argues that the court's failure to give a curative instruction violated his rights under due process and equal protection of the law. (Pet'r Mem. at 2.) As with his claim under his first ground, Porter did not raise his constitutional complaints under this ground in the Texas courts. (Appellant's Br. at 6-8; PDR at 1; State Habeas R. at 14-16.) In fact, on appeal, Porter assumed the court's failure to give a curative instruction did not rise to the level of constitutional magnitude. (Appellant's Br. at 8; State Habeas R. at 45.)
If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him rights guaranteed by the federal constitution, he must say so, not only in federal court, but in state court. 28 U.S.C. § 2254(B)(1)(A); Duncan v. Henry, 513 U.S. 364, 366 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971). Because Porter did not make his federal constitutional claims under these grounds in the Texas courts, the claims are unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
A federal district court may, in the exercise of its discretion, raise a habeas petitioner's procedural default sua sponte and apply the default as a bar to further litigation of the petitioner's claims. Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998).
Porter 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 claim 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.
Porter has not given any explanation to excuse his default. Nor has he alleged and demonstrated that he is innocent of the crime for which he was charged and convicted. Accordingly, Porter's first and second grounds are procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51. Moreover, even if his claims were not procedurally barred, Porter has not shown that the state court's evidentiary ruling and its denial of a curative instruction violated his federal constitutional rights under the due process or equal protection clauses or that the court's rulings rendered his trial fundamentally unfair. Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997), cert. denied, 522 U.S. 1121 (1998).
2. Ineffective Assistance of Counsel
In his final ground, Porter contends he received ineffective assistance of trial counsel because counsel (1) failed to subpoena witnesses for the defense, (2) failed to request an independent psychological evaluation of Porter to determine whether a competency hearing was necessary, and (3) failed to advance his "only viable defense of incompetency." (Federal Pet. at 7; Mem. at 3-4.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688. To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. 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), reh'g granted en banc, 2002 WL 341696 (5th Cir. Mar. 4, 2002). Thus, where as here, a petitioner's ineffective assistance claims have been reviewed on their merits 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 the standard set forth in Strickland. Id. at 761.
If the state court does not make express findings of fact, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sain, 372 U.S. 293, 314 (1963); Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir. 1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973). Further, if the state court did not articulate the constitutional standards applied, this court may assume that the state court applied correct standards of federal law to the facts in the absence of evidence that an incorrect standard was applied. Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997).
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir. 1981).
In his state writ application, Porter raised his ineffective assistance claims, but the trial court denied relief without a hearing and without making express findings of fact regarding his claims. (State Habeas R. at 28-33.) In turn, the Texas Court of Criminal Appeals denied relief on Porter's state writ without a hearing. Ex parte Porter, No. 49, 691- 01, at cover. Thus, this court may infer that the state courts, having decided the claims on the merits, made findings consistent with the courts' determination of the claims and that the state courts applied the correct legal standard absent evidence to the contrary.
Porter's first complaint that counsel failed to subpoena and call favorable defense witnesses is not supported by the record. Generally, such complaints are not favored in federal habeas corpus review because the presentation of witness testimony is essentially a matter of strategy, and thus within the trial counsel's domain, and because a petitioner's allegations of what the witness would have testified are largely speculative. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984). Further, in order for a petitioner to show the requisite Strickland prejudice, the petitioner must show not only that the witness's testimony would have been favorable, but also that the witness would have testified at trial. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985); Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981). In the state court proceedings, Porter failed to meet this burden by providing the court with affidavits or similar mailer from the alleged favorable witnesses regarding what they would have testified to and indicating that they would have testified at trial. Sayre, 238 F.3d at 635-36. Thus, Porter is not entitled to relief under this claim.
Porter filed a "Motion to Present Witness Affidavits" in this proceeding, however, the motion was denied by this court on March 15, 2002, because it was an attempt by Porter to amend his federal petition to include new evidence, which requires leave of court, and because amendment would have rendered Porter's claims in this regard unexhausted and procedurally defaulted.
Likewise, Porter's complaints that counsel was ineffective for failing to request an independent psychological evaluation to show that he was incompetent to stand trial and for failing to pursue an insanity defense are without merit. Pursuant to Texas law, a criminal defendant is presumed to be competent to stand trial and must prove that he is not by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art. 46.02, § 1(b) (Vernon 2002). Although there was some evidence at Porter's trial that he experienced "mood swings" during which he would get extremely angry at times, that he had or was seeing a therapist, that he threatened suicide when R.C. had previously attempted to break up with him, and that he was on some "type of medication," there was nothing to suggest, and Porter does not allege, that he did not, at the time of trial, have the sufficient present ability to consult with his attorney with a reasonable degree of rational understanding or that he did not have a rational as well as a factual understanding of the proceedings against him. Id. art. 46.02, § 1A(a)(1)-(2).
Further, under state law, insanity is an affirmative defense to prosecution if the defendant shows that at the time of the charged conduct, he, as a result of severe mental disease or defect, did not know that his conduct was wrong. TEX. PENAL CODE ANN. § 8.01(a) (Vernon 1994). Notwithstanding the evidence previously mentioned regarding Porter's mental or emotional history, there was nothing in the record that suggests he suffered from a severe mental disease or defect at the time of the charged offense. (4 Rep. R. at 206; 5 Rep. R. at 55-58.) Moreover, the choice by counsel to rely upon certain lines of defense to the exclusion of others is largely a strategic or tactical choice. See generally Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th Cir. 1987). Here, it is clear that the defensive theory at trial was that R.C. consented to having sexual relations with Porter, and, thus, Porter did not commit sexual assault as charged. A defense on the merits runs counter to an insanity defense, which "practically" requires an admission by the defendant that he committed the crime. Blankenship v. Estelle, 545 F.2d 510, 516 (5th Cir. 1977). Thus, in the absence of evidence in the record concerning trial counsel's reasons for not pursuing an insanity defense or that such a defense would have been both tenable and a better alternative to the defense presented at trial, we presume that Porter's counsel made an informed and conscious strategic decision not to pursue the defense. Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983).
In summary, relying on facts impliedly found by the state courts, Porter has not met his burden to show the state courts' adjudication of his ineffective assistance claims is contrary to or involved an unreasonable application of the Strickland standard. 28 U.S.C. § 2254(d). Accordingly, Porter is not entitled to habeas relief under his third ground. 28 U.S.C. § 2254(d),(e)(1).
II. RECOMMENDATION
Porter'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 May 1, 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 May 1, 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.