Opinion
CIVIL ACTION NO. 4:03-CV-098-Y.
June 11, 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 Juan Lopez Reyes Jr., TDCJ-ID #939042, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Iowa Park, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Reyes was charged in state court with murdering Davis Diaz on or about January 23, 1999. (Clerk's R. at 3.) The evidence at trial shows that on the date in question Reyes and Diaz got into a fight at the Durango Club in Fort Worth. (4Rep. R. at 106-09.) After the altercation, Reyes left, but returned shortly thereafter with as least six other people. (Id. at 109, 123.) The group pushed Diaz into a corner, and Reyes stabbed him multiple times with a knife. (Id. at 110-12.)
A jury found Reyes guilty of murder and assessed his punishment at life imprisonment. (Clerk's R. at 29, 35.) Reyes appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on September 20, 2001. Reyes v. State, No. 2-00-320-CR (Tex.App.-Fort Worth Sept. 20, 2001) (not designated for publication). On March 20, 2002, the Texas Court of Criminal Appeals refused Reyes's petition for discretionary review. Reyes v. State, PDR No. 2120-01.
Reyes subsequently filed a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Reyes, No. 54,179-01, at cover (Tex.Crim.App. Jan. 15, 2003) (not designated for publication). He 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 February 5,2003. 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 five grounds, Reyes raises the following claims:
(1) The trial court abused its discretion by excluding the transcript and tape of the 911 call;
(2) The trial court abused its discretion by refusing to grant a mistrial after the state disclosed the exculpatory 911 tape;
(3) The state knowingly presented false evidence by and through the testimony of Rosa Rodriguez; and
(4) Trial and appellant counsel rendered ineffective assistance of counsel. (Pet'r Mem. at 7, 10-11, 17.)
E. RULE 5 STATEMENT
Cockrell believes that Reyes has sufficiently exhausted his state remedies on the issues presented and, thus, does not move for dismissal on this ground. (Resp't Answer at 9.)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. Reyes, 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).
2. 911 Transcript and Tape
In his first and second grounds, Reyes contends the trial court abused its discretion by excluding the transcript of the 911 call to police at the time of the murder and by refusing to grant him a mistrial when the state disclosed the exculpatory 911 tape after the jury began to deliberate. (Pet'r. Mem. at 7.) At trial, Rosa Rodriguez, the bartender at the Durango Club, testified that during the attack on Diaz she called 911. (5 Rep. R. at 31.) While she was on the phone, Reyes ran to the door and started yelling, "They're coming, let's go." (Id.) She then saw Reyes "cleaning a knife on his pants." (Id. at 32.) Reyes sought to introduce the transcript of the 911 call into evidence on the basis that, contrary to her testimony, the transcript showed that Rodriguez told the 91 1 operator that the perpetrators had left the bar about five minutes before the call. (Pet'r Mem. at 5.) The trial court sustained the state's objection to admission of the transcript on hearsay grounds. (5 Rep. R. at 136, 194-95.)
In habeas actions, a federal court does not sit to review mere admissibility of evidence under state law, and a state trial court's evidentiary ruling will mandate habeas relief only when the error violates a federal constitutional right or is so extreme that it constitutes a denial of fundamental fairness. Little v. Reyes, 162 F.3d 855, 862 (5th Cir. 1998); Gochicoa v. Reyes, 118 F.3d 440, 446 (5th Cir. 1997); Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994). Exclusion of the transcript of the 91 1 call does not violate any constitutional right, and, having reviewed the entire record, it cannot be said that exclusion of the evidence detracted from the fairness of the proceedings. Reyes misrepresents the statements by Rodriguez to the 911 operator. The transcript reflects that she told the 911 operator during the call that Diaz was stabbed "about five minutes ago," but the men responsible had just left the bar. (State Habeas R. at 35.) Further, Reyes had ample opportunity to question Rodriguez about the 911 call and any inconsistencies between her testimony at trial and her statements to the 911 operator. (5 Rep. R. at 133-37.)
Next, Reyes contends the trial court abused it discretion by refusing to grant a mistrial on the grounds that the state, in violation of its due process duty under Brady, failed to make the 911 tape available to the defense prior to trial. (Pet'r Mem. at 4.) There are three components to a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence is material to guilt or punishment- i.e., there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 674 (1985).
Here, after the state concluded its closing argument and the jury retired to the jury room to deliberate, the state disclosed that it had found the 911 call by Rodriguez on a tape recording made available to the defense the day before. (6Rep. R. at 31-34.) Apparently, defense counsel had reviewed the 91 1 tape recording, but was unable to find Rodriguez's call on the tape. (Id.) Applying the applicable standards, the state appellate court found that the prosecution did not withhold the tape, that it presented the tape to the defense as soon as it received it, and that the defense had access to the tape containing the 911 call. (Id. at 41-42.)
Reyes presents nothing to rebut the presumptive correctness of these findings, and the state appellate court appears to have correctly applied the standards set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. (State Habeas R. at 39-42.) See also Castillo v. Johnson, 141 F.3d 218, 222-23 (5th Cir. 1998) (holding state has no obligation to produce evidence or information already known to defendant, or that could be obtained through defendant's exercise of reasonable diligence, or evidence or information that defense had access to, if not complete knowledge of); Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997) (holding state has no obligation to point defense toward potentially exculpatory evidence when evidence is either in the possession of defendant or can be discovered by exercising due diligence).
3. False Evidence
In his third ground, Reyes contends the prosecution knowingly presented false evidence by and through the testimony of Rodriguez, in violation of the Fourteenth Amendment. (Pet'r Mem. at 10.) Specifically, he argues that the transcription of the 911 tape establishes that the actual perpetrator left the bar prior to Rodriguez calling 911, while the prosecution presented testimony that Rodriguez saw Reyes with the knife while she was on the phone with 911. (Id.) He urges that rather than correcting this false testimony, the prosecution withheld the actual tape until it had rested.
Under Napue v. Illinois, 360 U.S. 264, 271 (1959), in order to prevail on a claim that the government knowingly presented false evidence, one must show that the testimony was actually false, that the testimony was material, and that the prosecution knew that the testimony was false. Reyes cannot establish either that there was false testimony given by Rodriguez for the State or that the State knew the testimony was false. As noted above, Reyes mischaracterizes Rodriguez's statements to the 911 operator. The transcript reflects that she told the 911 operator during the call that Diaz was stabbed "about five minutes ago," but the men who attacked Diaz had just left the bar. (State Habeas R. at 35.) Having reviewed the record, this statement is not inconsistent with Rodriguez's trial testimony. (5Rep. R. at 31, 91-92, 132-41.)
4. Ineffective Assistance of Counsel
In his fourth and fifth grounds, Reyes contends he received ineffective assistance of trial and appellate counsel. A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); 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; see also Smith v. Robbins, 528 U.S. 259, 287-88 (2000) (applying Strickland standard to ineffective assistance claims against appellate counsel). 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.
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. Where, as here, the claims have been reviewed on their merits and denied by the state courts, this court can grant federal habeas relief only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland, or if the decision is based on an unreasonable determination of the facts in light of the evidence before the court. Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998); Nobles v. Johnson, 127 F.3d 409, 418 (5th Cir. 1997).
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 does 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. 1981).
Reyes contends counsel was ineffective at trial by (1) failing to advance the argument that the trial court's refusal to admit the 911 tape was a due process violation, (2) failing to advance the argument that the trial court's refusal to admit the 911 tape "prevented the state from correcting false testimony, (3) failing to advance a confrontation clause argument as to his codefendant's confession, and (4) failing to request an in camera inspection of the 911 tape. (Pet'r Mem. at 11-17.)
Reyes's first two arguments are contradicted by the record. The record indicates that counsel, in fact, had access to the 911 tape at least the day before, but was unable to locate Rodriguez's call on the recording. Further, Reyes has not shown that the state presented false evidence. Failure to raise meritless objections is not ineffective assistance of counsel. Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
Reyes' third claim also fails. Apparently in an effort to mitigate punishment, defense counsel called Diane Dominguez's wife during the punishment phase of trial and asked her if she was aware of the fact that Dominguez "signed a confession saying he's guilty." (7Rep. R. at 19.) She responded that Dominguez did not sign a confession that he committed the murder, but only that he was there. On cross-and recross-examination, the state further questioned Diane about statements Dominguez made in his written statement. Defense counsel objected on hearsay grounds, but the trial court overruled his objections. (Id. at 23-24.) Reyes contends his counsel should have objected to the state's use of the confession as a violation of his Sixth Amendment right to confrontation. (Pet'r Mem. at 12-13.) In response, Cockrell argues, among other things, that the right to confrontation does not apply to the punishment phase of trial and, thus, counsel did not perform deficiently by failing to raise a confrontation objection. (Resp't Answer at 17.) See Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002); United States v. Beaulieu, 893 F.2d 1177, 1180 (10th Cir. 1990).
Although the Fifth Circuit has held that a defendant's confrontation rights at sentencing are "severely restricted," the matter need not be addressed here. See Unites States v. Ramirez, 271 F.3d 611, 613 (5th Cir. 2001). A defendant cannot obtain reversal because of the admission of otherwise inadmissible evidence where the defendant himself has opened up the constitutionally forbidden subject matter. United States v. Taylor, 508 F.2d 761, 763-64 (5th Cir. 1975). Sometimes called the doctrine of invited error, the accepted rule is that where the purposeful injection of allegedly inadmissible evidence is attributable directly to the action of the defense, its introduction does not constitute reversible error. See generally Walder v. United States, 347 U.S. 62, 65 (1954); Birns v. Perini, 426 F.2d 1288, 1290 (6th Cir. 1970); United States v. Fioravanti, 412 F.2d 407, 414 (3rd Cir. 1969). Given that counsel called the witness to testify on behalf of Reyes and that counsel purposefully elicited testimony from her about Dominguez's statement, any objection to the state's continued questioning of her on the matter would have been frivolous.
Reyes's final argument can be summarily rejected. Because the defense had access to the tape and because there is no evidence that the state otherwise withheld the 911 tape in violation of Reyes's due process rights under Brady, counsel was not ineffective by failing to request an in camera inspection of the tape.
Reyes also contends his appellate counsel was ineffective because counsel failed to (1) draft the appellant's brief "to comport with trial counsel['s] argument on the exclusion of the 911 tape/transcript," (2) present a copy of the 91 1 tape or transcript to the appellate court, and (3) advance "trial counsel['s] argument on [Dominguez's] confession." (Pet'r Mem. at 17-18.) Appellate counsel is not, however, required to raise every conceivable argument urged by his client on appeal, regardless of merit. Robbins, 528 U.S. at 288. The question is whether Reyes has shown that appellate counsel's failure to raise the issues worked to his prejudice-i.e., that but for counsel's errors he would have prevailed on his appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir. 1991). Reyes has failed to meet this burden. Neither trial counsel nor appellate counsel advanced any argument that the 911 transcript was not hearsay or fell within a hearsay exception. Nevertheless, even if the trial court erroneously excluded the 91 1 transcript on hearsay grounds, the court permitted defense counsel to refer to it extensively during his cross-examination of Rodriguez. Thus, Reyes suffered no harm as a result of the exclusion of the 911 transcript at trial or appellate counsel's failure to provide a copy of the document to the appellate court. Furthermore, although appellate counsel failed to advance trial counsel's hearsay argument regarding Dominguez's confession, the appellate court nevertheless considered and rejected the argument.
The performance component of Strickland need not be addressed first, and an ineffective assistance claim maybe disposed of on the ground of lack of sufficient prejudice. Robbins, 528 U.S. at 286 n. 14; Strickland, 466 U.S. at 697.
Thus, having independently reviewed each of Reyes's claims in conjunction with the state courts' records, the adjudication of his ineffective assistance claims does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard, or a decision based on an unreasonable determination of the facts in light of the evidence presented.
5. Summary
In sum, the record supports the state courts' determination of the issues presented in this federal proceeding. The state courts' determination is not contrary to or involve an unreasonable application of federal law in light of the record as a whole and is entitled to deference and the presumption of correctness.
II. RECOMMENDATION
Reyes'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 July 2, 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 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 July 2, 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, 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.