Opinion
Civil Action No. 4:02-CV-794-A
April 16, 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 under 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 Todd R. Rankin, TDCJ-ID #826181, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Powledge Unit in Palestine, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Rankin and his wife Jill had two sons, Joseph and Cody. (3 Rep. R. 97.) Because of the filthy condition of their home and their lack of supervision over their children, the police were called, which resulted in a referral to a non-profit family services group affiliated with Child Protective Services. ( Id. at 54-65, 95-134.) On February 8, 1996, two-year-old Joseph drowned in a septic tank in the backyard of his home. Rankin had worked on the septic tank numerous times, but had not successfully repaired it. ( Id. at 237-340, 252-53, 291-93.) The tank's cover had been off for sometime, and friends had warned Rankin not to leave it uncovered. ( Id.; 5 Rep. R. at 39-40.)
On September 12, 1996, Rankin was indicted for murder and intentionally or knowingly, by omission, causing serious bodily injury to a child under 15. TEX. PENAL CODE ANN. §§ 19.02(b)(1)-(2), 22.04(a) (Vernon 2003). (State Habeas R. at 62-63.) The trial court appointed David Pearson to represent Rankin. (Clerk R. at 8.) On October 31, 1996, Ross Gault notified the trial court that Rankin had hired him to replace Pearson. ( Id. at 13.) At some point shortly before trial, Danny Burns joined the defense team as Gault's co-counsel. ( Id. at 84; 1 Rep. R. at 19, 35; 4 Rep. R. at 10.) On April 9, 1998, a jury found him guilty of one count and assessed punishment at 20 years' confinement. (State Habeas R. at 64.)
On the first day of the trial and before voir dire, the State waived the murder charge and the intentional portion of the remaining count. (Clerk R. at 6; 2 Rep. R. at 4, 6.)
Jill pleaded guilty to intentionally or knowingly, by omission, causing serious bodily injury to a child younger than 15, and the trial court sentenced her to 10 years' confinement. Rankin v. State, 46 S.W.3d 899, 900 (Tex.Crim.App. 2001).
The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Rankin's petition for discretionary review. Rankin v. State, 41 S.W.3d 335 (Tex.App.-Fort Worth 2001, pet. ref'd). Rankin then hired Richard Alley to file a state application for writ of habeas corpus challenging his conviction. ( Id. at 6, 56A.) The grounds raised in the application were that Rankin was denied his right to cross-examine a trial witness and that trial counsel Brantley Pringle was ineffective. ( Id. at 4A, 42, 49.) The State replied to Rankin's application and argued that the trial court should return the application because the grounds were not set out on the form and were set out by reference. ( Id. at 59.) On December 6, 2001, the trial court found that the application "should be returned because it does not comply with Texas Rule of Appellate Procedure 73.1 or 73.2." ( Id. at 61.) The trial court then ordered the writ to be forwarded to the Court of Criminal Appeals. ( Id.) On February 22, 2002, Rankin filed a pro se supplement to his habeas application and argued that Burns was ineffective at trial. (1st Supp. Clerk R. at 2.) The supplement was received in the Court of Criminal Appeals on March 1, 2002. On April 10, 2002, the Court of Criminal Appeals denied Rankin's application without written order. Ex parte Rankin, No. 51, 206-01 (Tex.Crim.App. Apr. 10, 2002) (not designated for publication). Rankin filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on September 23, 2002. He filed an amended petition on December 9, 2002.
On the application form, the grounds were set out in an abbreviated manner and were fully discussed in an attached memorandum of law.
D. ISSUES
Rankin raises two issues:
1. He was denied the Sixth Amendment right to confront a witness against him.
2. Trial counsel were constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell argues that Rankin's claim arguing that trial counsel were ineffective has not been exhausted and asserts that it has been procedurally defaulted; however, Cockrell believes that Rankin's remaining allegation has been properly exhausted.
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 under a state court judgment 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 United States Supreme Court 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 precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002), cert. denied, 123 S.Ct. 963 (2003).
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 this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. 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).
2. Confrontation Rights
Rankin argues that he was denied the right to confront and cross-examine the State's main witness, Alma Abreo. The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The guarantees of a face-to-face confrontation with witnesses at trial and of the right to cross-examine those witnesses serve to protect the integrity of the fact-finding process in criminal trials. Maryland v. Craig, 497 U.S. 836, 850 (1990).
At trial, Abreo testified over objection that Rankin had once told her that he was sick of his children and that he "would take out his kids one by one and make it look like an accident." (4 Rep. R. at 31-32.) On cross-examination, Abreo denied that she had ever been a topless dancer. ( Id. at 38-39.) Outside the presence of the jury, counsel called two witnesses who stated that they had seen Abreo work as a topless dancer. (5 Rep. R. at 9, 15-16.) The trial court ruled that, although counsel could elicit testimony from them that Abreo was not worthy of belief, he could not question them about her prior employment as a topless dancer. ( Id. at 10-13, 23-25.) Rankin argued on direct appeal that his confrontation rights were violated by the trial court's ruling. The Second District Court of Appeals held that the trial court's failure to allow Rankin to impeach Abreo about her topless dancing denied him effective cross-examination under the Confrontation Clause. Rankin, 41 S.W.3d at 345. However, the court determined that such error was harmless because it did not contribute to Rankin's conviction or punishment. Id. at 345-46. The Court of Criminal Appeals refused Rankin's petition for discretionary review on this issue. See YIst v. Nunnemaker, 501 U.S. 797, 805-06 (1991) (holding courts "look through" discretionary-review refusal to determine if claim was adjudicated on the merits in applying § 2254(d) standard of review). Further, the Court of Criminal Appeals denied this claim on the merits without written order. See Torres, 943 S.W.2d at 472 (stating denial of state habeas application is adjudication on claims' merits).
Rankin has failed to prove, or even argue, either that the state courts' decisions were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court or that the decision was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). Indeed, a complaint that the trial court unduly restricted cross-examination of the State's witness is a mixed question of fact and law that on federal habeas review is subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Wilkerson v. Cain, 233 F.3d 886, 890-92 (5th Cir. 2000). Thus, to be entitled to relief on a claim regarding violation of his Sixth Amendment right to confrontation, Rankin must show not only that the right was in fact violated, but also that "there is `more than a mere reasonable possibility that [the error] contributed to the verdict.'" Wilkerson, 233 F.3d at 892 (quoting Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (emphasis omitted)). This involves a reviewing court assuming that the jury was fully informed of the evidence contradicting the witness and applying several factors: (1) the importance of the witness's testimony in the State's case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the State's case. Van Arsdall, 475 U.S. at 684. As fully discussed by the intermediate state court of appeals, the facts, when considered in light of the Van Arsdall factors, show that the error was harmless. Rankin, 41 S.W.3d at 346; E.g., United States v. Stewart, 93 F.3d 189, 194-95 (5th Cir. 1996); Clark v. State, 881 S.W.2d 682, 696-97 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1156 (1995). Rankin is not entitled to habeas corpus relief. 28 U.S.C. § 2254(d).
3. Ineffective Assistance of Counsel
Rankin argues that trial counsel were ineffective. Specifically, he argues that Brantley Pringle and Danny Burns did not effectively represent him before and during his trial.
a. Exhaustion
Cockrell asserts that Rankin has failed to exhaust his claims attacking Burns's performance regarding the jury charge. (Resp't Answer at 17-18 n. 7.) In the state habeas application Alley filed on Rankin's behalf, the ineffective-assistance-of-counsel claims focus entirely on Pringle's representation of Rankin. (State Habeas R. at 49-56.) In Rankin's pro se supplemental application, he asserted that Burns was also ineffective regarding the jury charge. (1st Supp. Clerk R. at 2.) Although Rankin's supplement was not filed in the trial court before it recommended returning the application for improper form, it was filed in the Court of Criminal Appeals before it denied the application. This denial was an adjudication on the merits of Rankin's claims. Torres, 943 S.W.2d at 472; see also Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999). Rankin pursued a state habeas claim against Burns — which was considered and denied on the merits by the Court of Criminal Appeals — before raising it in this court. That is all that is required for exhaustion. Ogle v. Estelle, 592 F.2d 1264, 1267 (5th Cir. 1979); McBride v. Estelle, 507 F.2d 903, 904 (5th Cir. 1975). Thus, Rankin exhausted his claim regarding Burns's objection to the jury charge.
b. Pringle and Burns
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90.
Rankin's complaints about counsel were reviewed and rejected during state collateral-review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Rankin asserts that Pringle was constitutionally ineffective because he:
1. failed to file pretrial motions;
2. conducted an inadequate pretrial investigation;
3. did not challenge the State's evidence;
4. did not elicit beneficial facts at trial;
5. failed to be familiar with or have a firm command of the law and facts;
6. did not "properly advocate"; and
7. failed to properly prepare.
To the extent Rankin argues these allegations apply to Burns, such claims were not exhausted in his state habeas application and are, thus, procedurally defaulted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001); 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).
Pringle never represented Rankin in this matter. The record is devoid of any reference to him and shows that only Pearson, Gault, and Burns represented Rankin before and during his trial. Thus, these claims are patently without merit.
Rankin also argues that Burns was ineffective because he requested an improper jury charge on a non-existent lesser included offense. Burns objected that the jury charge did not include an instruction on the lesser included offense of criminally negligent injury to a child by omission, which the trial court denied. (5 Rep. R. at 51-52.) As pointed out by the Second District Court of Appeals, criminally negligent injury to a child by omission is not an offense under Texas law. Rankin, 41 S.W.3d at 348; see also TEX. PENAL CODE ANN. § 22.04(a). Thus, counsel requested a charge that could not legally be given. However, Rankin argues that Burns should have asked for a charge on criminally negligent homicide instead. (Pet'r Mem. at 16.) Burns did ask for a charge on criminally negligent homicide. (5 Rep. R. at 52.) Thus, although counsel was deficient in asking for a legally unavailable charge, Rankin has failed to show prejudice from the error — Burns did additionally ask for the charge that Rankin asserts would have been more appropriate for his case. See Galvan v. Cockrell, 293 F.3d 760, 766 (5th Cir. 2002).
Although counsel requested a charge on "criminally negligent injury to a child," the only count the State tried Rankin on was knowingly causing injury to a child by omission.
It appears Rankin is also claiming that Burns was ineffective on appeal because he raised the trial court's denial of his requested criminally-negligent jury charge. (Pet'r Mem. at 16-17.) He is not entitled to relief on this claim because he has failed to prove that, but for Burns's error, he would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000).
Rankin has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
4. Summary
In sum, Rankin is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Rankin was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Rankin'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 6, 2003. 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 Sen's. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 6, 2003 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, the 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, is returned to the docket of the United States District Judge.