Opinion
CIVIL ACTION NO. 3:01-CV-0817-R
February 10, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and the District Court's order filed on November 25, 2003 reassigning the petition, the subject cause has been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Abdel Mohamed Rahim ("Rahim" or "Petitioner") is confined by the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is the Director of TDCJ-CID.
Statement of the Case: Rahim entered a plea of not guilty to the offense of capital murder alleged in the indictment returned in cause number F9572756-LIK. The jury found Petitioner guilty and a term of life imprisonment was automatically imposed.
Rahim effected a direct appeal and on June 5, 1998 the Court of Appeals affirmed his conviction. Rahim v. State, No. 05-96-01069-CR, 1998 WL 289793 (Tex.App.-Dallas, 1998, pet. ref d) (not selected for publication). Petitioner's petition for discretionary review was refused by the Texas Court of Criminal Appeals on January 27, 1999. Rahim v. State, PDR No. 98-1725. Rahim's petition for a writ of certiorari was denied by the United States Supreme Court on October 4, 1999. Rahim v. Texas, 528 U.S. 810, 120 S.Ct. 42 (1999). Thereafter he filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07. Ex. Parte Rahim, Appl. No. 48, 544-01. The Texas Court of Criminal Appeals denied Rahim's application without written order on the findings of the trial court on May 2, 2001. See Ex Parte Rahim at cover.
In response to Rahim's petition and this court's show cause order Respondent filed an answer together with copies of Petitioner's prior state proceedings on October 25, 2001. Petitioner filed a traverse on October 30, 2001.
Findings and Conclusions: Rahim presents two grounds for relief in his § 2254 petition. The magistrate judge will address them in reverse order — the order in which they were presented in his art. 11.07 application.
Rahim claims that Darrell Daniel Hardman and John Felix DeJean testified falsely in the course of his criminal trial that neither had been offered any favors or consideration by the prosecution in exchange for the testimony presented to the jury on June 26th and 27th, 1996, respectively. It is well-settled that non-disclosure of promises made to a witness in consideration for the witness's testimony and the prosecution's failure to correct a witness's testimony that no consideration was given violates a defendant's due process rights. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763(1972).
In support of this ground, first raised in his art. 11.07 application, Petitioner submitted the affidavits of Hardman, DeJean, and Phil Wetherbee. See Appl. No. 48, 544-01 at 0035; 40-42. In response to the habeas application the State submitted affidavits executed by the prosecutor in Rahim's case, Tom D'Amore, Id. at 0212-14, and Barry Dyson, the District Attorney's investigator in the Rahim case who interviewed Darrell Hardman and John DeJean prior to Rahim's criminal trial. Id. at 0215-16.
Rahim also included affidavits executed by a private investigator, Samuel Williams. Id. at 0037-38 and 0043.
The state habeas court, who was also the presiding judge at Petitioner's criminal trial, made findings of fact on this issue based upon the record and the contradicting affidavits, Finding of Fact Number 1, Id at 0227-30, concluding that "The court finds that the inmate witnesses testified truthfully at trial that there was no deal in exchange for their testimony. The court finds that the State did not present perjured testimony." The Texas Court of Criminal Appeals in turn denied the application on the basis of the trial court's findings. Id. at cover.
Rahim's § 2254 petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). In pertinent part a federal court may not grant relief under § 2254 "unless the adjudication resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(2). Further the findings of the state court are entitled to a presumption of correctness, and may be overturned only in the event that they are rebutted by "clear and convincing evidence." § 2254(e)(1); See, e.g. Burgess v. Dretke, 350 F.3d 461, 466 (5th Cir. 2003).
The magistrate judge has carefully reviewed the trial testimony of Darrell Hardman ( See No. F95-72756, Court Reporter's Vol. 3 at 453-66 (outside the jury's presence) and at 467-501 (in the jury's presence)), the trial testimony of John DeJean ( Id., Court Reporter's Vol. 4 at 516-21 (outside the jury's presence)) and 522-30 (in the jury's presence), and the contradicting affidavits filed in art. 11.07 proceeding. It is clear beyond question that, given the trial court's prerogative to assess the credibility of the evidence, that the court's determination of the facts was reasonable, thereby foreclosing relief on this ground.
The transcript erroneously states that the jury was present. See Id. at 521.
Petitioner argues that the state habeas court erred in failing to give credence to the affidavit of Mr. Wetherbee ( See Pet. at 16-17). However, the trial court found that: "The dismissal of the enhancement paragraphs in exchange for significant jail time is common and does not support Appellant's contention that [DeJean] was promised this deal prior to his testimony at the Rahim trial." Appl. No. 48, 544-01, supra, at 229-30 (emphasis added). Wetherbee's affidavit is wholly silent as to any offers by the prosecution with respect to DeJean's testimony prior to the date of his testimony on June 27, 1996.
In his other ground for relief Rahim asserts that the Texas courts erred in finding that the admission of a non-testifying co-defendant's statement was harmless error. The last written analysis and reasoned decision of the Texas state courts on this issue is found in the opinion of the Fifth Court of Appeals in the context of Petitioner's direct appeal. See Appl. No. 48, 544-01 at 0021-24, [No. 05-96-01069-CR, opinion filed on June 5, 1998]. In addressing this issue the appellate court cited the prior decision of the Texas Court of Criminal Appeals in Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App. 1989) in which that court recognized the application of the harmless error rule announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967). In addition the opinion cited Harrington v. California, 395 U.S. 250, 89 S.Ct 1726 (1969) in which the Supreme Court applied the Chapman test to a Bruton violation.
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968).
In Chapman v. California, supra, the Court in substance reiterated the test announced in Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229 (1963) that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24, 875 S.Ct. at 828.
The differing results in the Supreme Court decisions addressing Bruton violations suggest that whether the error is harmless or not is a fact intensive inquiry on a case by case basis. See Parker v. Randolph, 442 U.S. 62, 71 n. 5, 99 S.Ct. 2132, 2138 n. 5 (1979). The Supreme Court has not addressed a fact scenario such as that presented in Rahim's case, where although a co-defendant's statement was admitted, the defense was permitted to present the co-defendant's prior inconsistent statement to police as well as the co-defendant's testimony at his separate trial wherein he recanted the statement admitted in the prosecution's case-in-chief.
More recently, in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993) the Court applied the harmless-error standard adopted in Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946) instead of the Chapman v. California test in the context of a § 2254 petition.
"Under Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict . . . if [the judges'] minds are in virtual equipoise as to the harmlessness, under the Brecht standard of the error, then we must conclude that it was harmful. Moreover, the Brecht standard does not require in order for the error to be held harmful that there be a reasonable probability that absent the error the result would have been different." Corwin v. Johnson, 150 F.3d 467, 500 (5th Cir. 1998); but see Mitchell v. Espanza, ___ U.S. ___, 124 S.Ct. 7, 11-12 (2004) (applying the Chapman test).
Before habeas corpus relief may be granted on this ground it must be demonstrated that the Texas court's determination that the admission of the co-defendant's statement was harmless error constituted "an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). As is made clear in the Supreme Court's decision in Price v. Vincent, 538 U.S. 634, 123 S.Ct. 1848 (2003) and more recently in Mitchell v. Espanza, supra, a federal habeas court is not free to review the questions of law decided by a state court de novo, but is limited to deciding whether the state court applied Supreme Court precedent in an objectively unreasonable manner.
It cannot be said that the Fifth Court of Appeal's analysis of the evidence and its application of the Supreme Court's harmless error standard under either Chapman or Brecht-Kotteakos was objectively unreasonable. Therefore relief on Rahim's Bruton claim is foreclosed.
Because Petitioner has failed to establish that the trial testimony of either Hardman or DeJean was false or was in consideration for promises made by the State, the Fifth Court of Appeals was justified in considering their testimony in the context of its harmless error analysis.
RECOMMENDATION:
For the foregoing reasons it is recommended that Rahim's § 2254 petition be denied and dismissed.
A copy of this recommendation shall be transmitted to the counsel for Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.