Opinion
No. 4:02-CV-796-A
January 8, 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 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 Dale Lee Price, TDCJ-ID #1030071, is in custody of the Texas Department of Criminal Justice, Institutional Division, in El Paso, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In August 1999, Price was charged by indictment in state court with possession of less than one gram of heroin (Count One) and possession of less than one gram of cocaine (Count Two). (Clerk's R. at 3.) The indictment also included an enhancement notice alleging two prior felony convictions. ( Id.) In February 2001, a jury found Price guilty on both counts and assessed his punishment at twenty years' imprisonment and a $10,000 fine for each offense. ( Id. at 77-78, 45-46, 54-57.)
Price appealed his convictions, but the Second Court of Appeals dismissed the appeal at Price's request on August 2, 2001. Price v. State, No. 2-01-104-CR (Tex.App.-Fort Worth Aug. 2, 2001) (not designated for publication). Thereafter, Price filed a state application for writ of habeas corpus challenging his convictions, which was dismissed by the Texas Court of Criminal Appeals on the grounds that Price's direct appeal remained pending. Ex parte Price, No. 12,945-11, at cover (Tex.Crim.App. Oct. 17, 2001) (not designated for publication). Price then filed a federal petition for writ of habeas corpus, which was dismissed without prejudice on exhaustion grounds. Price v. Cockrell, No. 4:02-CV-0073-A (N.D. Tex. June 28, 2002) (not designated for publication). Price filed a second state writ application on June 10, 2002, which was denied without written order by the Texas Court of Criminal Appeals on July 31, 2002. Ex parte Price, No. 51,863-02, at cover (Tex.Crim.App. July 31, 2002) (not designated for publication). Price 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 September 14, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In his petition, Price raises the following issues:
(1) The complaint (defined as evidence) adduced at trial will not support the information to invest the trial court with competent jurisdiction over his person.
(2) There is a fatal variance between the complaint and the information.
(3) The evidence is legally and factually insufficient to support his guilt.
(4) The state impermissibly referred to his prior conviction during voir dire.
(5) The offense report is false.
(6) The sentence is statutorily impermissible for a state jail felony.
(7) His warrantless arrest was unconstitutional because there was no probable cause to detain him. (Pet. at 7-8; Mem. in Support at 11.)
E. RULE 5 STATEMENT
Cockrell believes that Price has sufficiently exhausted his state remedies on the issues presented and, thus, does not move for dismissal on this ground. (Resp't Answer at 5.)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). 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). Moreover, 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.), cert. denied, 414 U.S. 868 (1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir.), cert. denied, 411 U.S. 968 (1973). Finally, 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), cert. denied, 531 U.S. 1120 (2001).
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.), cert. denied, 454 U.S. 1109 (1981).
2. Analysis
In his first issue, Price argues that the complaint upon which his convictions were founded does not comply with article 21.22 of the Texas Code of Criminal Procedure, requiring that it be made by some credible person other than the prosecuting attorney, thus vitiating the resulting information and depriving the trial court of jurisdiction to consider the case. (Pet'r Mem. in Support at 12-16 Ex. B.) As a matter of Texas law, jurisdiction in a felony criminal case requires the due return of a felony indictment or the accused's affirmative waiver thereof and the return of a valid felony information based upon a sworn complaint. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App. 1980). Here, Price was not prosecuted upon an information, but upon an indictment returned by a grand jury on August 5, 1999. (Clerk's R. at 3.) Moreover, a close inspection of the complaint reflects that the affiant and the assistant district attorney who administered the oath were not the same person. Thus, contrary to Price's claim, the same person was not "both accuser and prosecutor" in his criminal case. (Pet'r Reply Br. at 5-7 Ex. B.)
Article 21.22 provides:
No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district attorney or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.
TEX. CODE CRIM. PROC. ANN. art. 21.22 (Tex. Vernon 1989).
Although distinctively different, both signatures are unintelligible.
In his second issue, Price asserts that there is "a fatal variance between the information and the complaint" because the complaint alleges only the offense of possession of heroin. (Mem. in Support at 16-17.) The record indicates that Price was arrested on May 22, 1999, and that a complaint was filed charging an offense of possession of heroin on May 26, 1999. (3Rep. R. at 7; Clerk's R. at 4.) Thereafter, as previously noted, an indictment was returned on August 5, 1999, charging possession of heroin and possession of cocaine. (Clerk's R. at 3.) Price cites to no authority, state or federal, which would limit the terms of the indictment solely to the offense alluded to in the complaint. See, e.g., Fairman v. United States, 544 F.2d 197, 198 (5th Cir. 1976) (applying federal law). Assuming the grand jury was presented with credible evidence or witness testimony that Price was in possession of both heroin and cocaine on the night in question, it was authorized under state law to deliver an indictment including both offenses. See TEX. CODE CRIM. PROC. ANN. arts. 20.09, 21.24 (Vernon 1977 1989, respectively).
In his third issue, Price contends the evidence adduced at trial was both legally and factually insufficient to show that he ever exercised care, custody, control, or management over the contraband seized by the police under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). (Pet'r Mem. in Support at 17-25.) The state argues that Price's claim of insufficiency of the evidence is barred under the procedural default doctrine by his failure to raise it on direct appeal. (Resp't Answer at 12-13.) Although the Texas Court of Criminal Appeals's denial of habeas relief stated no reasons, that court has long held that the sufficiency of the evidence may only be raised on direct appeal, and may not be raised in a state habeas proceeding. See West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986); Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994); Ex parte Brown, 757 S.W.2d 367, 368-69 (Tex.Crim.App. 1988); Ex parte McWilliams, 634 S.W.2d 815, 818 (Tex.Crim.App. 1982). In these circumstances, reliance on the procedural default is adequately established. See Ylst v. Nunnemaker, 501 U.S. 797, 801-07 (1991).
In turn, 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 v. Johnson, 243 F.3d 215, 219-20 (5th Cir. 2001). Price has not given any explanation to excuse his default of these claims. Nor has he demonstrated that failure to consider the claims will result in a miscarriage of justice, i.e., that he is innocent of the offenses for which he was charged and convicted. Accordingly, Price's third issue is procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
Even if Price had successfully shown the requisite "cause and prejudice," a claim that the evidence is factually insufficient is not cognizable on federal habeas corpus review. Fox v. Johnson, No. 4:00-CV-291-Y, 2001 WL 432247, at *2 (N.D. Tex. Apr. 20, 2001), adopted, 2001 WL 540215 (N.D. Tex. May 17, 2001). Moreover, contrary to Price's contention, viewed in the light most favorable to the prosecution, the evidence was such that any rational trier of fact could have found beyond a reasonable doubt that Price did exercise care, custody, control, or management over the contraband in question prior to abandoning the contraband in a row of bushes when fleeing from the police. (3Rep. R. at 16-21.) Jackson, 443 U.S. at 319.
In his fourth, fifth, and sixth claims, Price contends the state's attorney improperly prejudiced his right to a fair trial by alluding to his prior conviction during voir dire, that the offense report is false, and that the sentence is statutorily impermissible for a state jail felony. (Pet'r Mem. in Support at 11.) Price's petition and memorandum in support contain no argument or legal authority in support of these claims. These grounds are merely listed without discussion. Such conclusory assertions do not raise constitutional issues in a habeas proceeding. See Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir.), cert. denied, 519 U.S. 883 (1996).
In his seventh issue, Price contends his detention and arrest were unlawful under the Fourth Amendment. (Pet'r Mem. in Support at 25-27.) However, where, as here, a state has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search and seizure. Stone v. Powell, 428 U.S. 465, 489-95 (1976). Price was given a full and fair opportunity to litigate his claim in state court. Price's trial counsel filed a motion to suppress on Fourth Amendment grounds in the trial court and Price raised the same claim presented in his state writ application. (Clerk's R. at 71-73; State Habeas R. at 26-28.) In each instance, the state courts considered and rejected his argument. Thus, Price received a full and fair chance to litigate his claim in the state courts, and Stone bars relitigation of the issue here. See Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Dec. 2, 2002) (No. 02-7740).
II. RECOMMENDATION
Based on the foregoing, Price'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 January 29, 2003. 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 manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Serv's. 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 January 29, 2003, 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.
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.