Opinion
3-03-CV-262-M
August 15, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation 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 brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate confined at the Darrington Unit of the Texas Department of Criminal Justice, Institutional Division at Rosharon, Texas, serving a conviction for the offense of aggravated robbery with a deadly weapon.
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case: Upon his plea of not guilty to the offense of aggravated robbery with a deadly weapon as charged in the indictment returned in cause No. F-99-00337-NQ Petitioner was tried by a jury which returned a verdict of guilty. After Roberson pled true to the enhancement paragraphs of the indictment the jury assessed punishment at a term of 75 years in prison. The Fifth Court of Appeals at Dallas affirmed his conviction and his subsequently filed petition for discretionary review was refused by the Texas Court of Criminal Appeals.
Thereafter Roberson filed an application for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure, which was denied by the Court of Criminal Appeals without written order on the findings of the trial court without a hearing.
In response to the petition filed in this action Respondent filed her answer together with copies of Roberson's prior state proceedings. Roberson in turn filed a reply on June 23, 2003.
Findings and Conclusions: Roberson raises four grounds for relief in his petition. The most detailed claims related to his first ground in which he claims that he was denied the effective assistance of counsel by his retained trial attorney (Ground One).
In his first ground Petitioner alleges that his counsel was deficient in a number of respects. In order to establish that his attorney provided constitutionally deficient counsel he must prove both that counsel's conduct fell below the minimum standard for representation guaranteed under the Sixth Amendment (cause) and that but for counsel's unprofessional errors, the result of the proceedings would have been different (prejudice). See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064 (1984). A petitioner is not entitled to relief if he fails to establish either prong of the two-part test.
In United States v. White, 524 F.2d 1249, 1253 (5th Cir. 1975), in addressing a pre-Strickland claim of ineffective assistance of counsel claim, the court noted that: "The best of lawyers have to take the facts as they are and can only do their best to present the facts in any available favorable light." This observation is equally relevant to Roberson's case, particularly as it relates to the "prejudice" prong.
The record in his case reflects that Roberson declined to follow his counsel's recommendation that he accept the State's 30-year plea offer.See Reporter's Record, Vol. 3 at 7-8. In considering his claims the magistrate judge has carefully reviewed the testimony presented at the guilt-innocence stage of the trial. Id. Vol. 3, pages 11-207. The evidence of Petitioner's guilt is overwhelming and would have been conclusive, but for Petitioner's own trial testimony, which was contrary to that of all the prosecution's witnesses and subject to severe impeachment based upon his prior and numerous convictions.
Briefly summarized the prosecution's evidence showed that Roberson accosted a delivery man, Arthur Lopez, outside the Outback Steak House. At the time Petitioner pointed a gun in Lopez's ribs he did not have a mask on. Upon entering the restaurant, which was not open for business at the time, one of the employees was able to place a 911 call. Also, the kitchen manager was able to set off a silent alarm. Police officers were on the scene almost at the same time that Roberson exited the restaurant with a bag over his shoulder which contained money and other receipts from the restaurant. The police saw him duck behind an adjacent restaurant and observed him hiding behind some bushes. They confronted him at the door of the restaurant and ultimately arrested him and retrieved the bag which also contained Petitioner's gun.
The restaurant employees and Mr. Lopez exited the Outback Steak House and seeing Petitioner in a squad car, Lopez spontaneously identified him as the robber. The other eyewitnesses to the robbery did not specifically identify Petitioner, since the robber wore a mask while inside the restaurant, but all identified the clothes which Petitioner was wearing as being identical to those worn by the robber and identified the contents of the recovered bag, including the gun, as being from the robbery. Finally the prosecution presented Petitioner's written and signed confession to the robbery of the Outback Steak House.
In defense Roberson presented two witnesses. The essence of their testimony was that he had enough money derived from other sources to obviate the necessity of obtaining money illegally. Testifying in his own behalf Roberson denied that he had committed the robbery. He testified that he observed another black male, dressed almost identically to his own attire shortly before the police officers arrested him. He surmised that it was this other person, whom no one else observed, that committed the robbery and threw the bag into the bushes. With regard to his written statement, he admitted that the statement accurately reflected what he told the interrogating officer, but he claimed that those portions relating to the offense were untrue, that he made the statements only after he requested to speak to an attorney, and because he was promised no other cases would be filed against him.
In rebuttal the two officers involved in the questioning denied that any promises or threats were made, that Petitioner never asked to speak to an attorney or refused to answer questions, and that questioning was recommenced only after Roberson requested to speak further.
In his allegations against his trial attorney Roberson claims that his attorney failed to preserve error regarding bias on the part of jury venire persons. Specifically he claims that counsel never made clear on the record the identity of those persons who responded to the attorney's questions on voir dire.
Jury selection, particularly the exercise of peremptory challenges, is fundamentally a strategic exercise. In order to establish prejudice Roberson must show that at least one of the jurors in this non-capital case was subject to a challenge for cause. With the exception of Mr. Rivas, who was selected as a juror, See Reporter's Record, Vole. 2 at 138, Petitioner has failed to show that any of the venire persons, whose responses are noted in his memorandum filed with his petition, was selected as a juror. With respect to Mr. Rivas, the fact that he was not enthusiastic about serving as a juror, E.g. See Petitioner's memorandum at page 14, hardly shows that he would not be impartial. In fact, his final response shows that he would be impartial.
He next complains of counsel's failure to obtain photographs of the crime scene. The essence of this claim is that defense photographs would have impeached the photographs made by investigators at the scene on the date of the offense. He suggests that photos would have shown that the bushes, where he was observed hiding, according to the arresting officers' testimony, were flush with the wall of the adjoining restaurant, consistent with Defendant's testimony at trial (See Vol. 3 at 149). However, he later stated on cross-examination that he never inspected the area to see if there was room (Id. at 191-92). This claim is based on nothing more than unsupported surmise on Petitioner's part.
In her affidavit filed in Roberson's art. 11.07 application, his attorney related that she did conduct an investigation, and went to the crime scene and determined that the police photographs accurately depicted the areas represented. See Application No. 53, 029-02, at 204-205. These statements were found to be true and correct.Id. at 208-209. See also Vol. 3 at 53-54.
Petitioner next complains of counsel's decision not to contest the in-court identification made by Arthur Lopez. It is self-evident that any attempt to suppress Mr. Lopez's in-court identification would have been futile. Lopez effected an identification of Roberson within minutes of Roberson's arrest shortly after the robbery was committed. According to Officer Don Fitzgerald's testimony Lopez spontaneously identified Petitioner before even being asked to make an identification. Vol. 3 at 83.
In order to prevail on this claim Roberson must establish that he was prejudiced, i.e. that had counsel contested Lopez's in-court identification, the court would have prohibited Lopez from identifying him as the robber in his testimony before the jury — that is that Lopez's identification was inadmissible.
An evidentiary ruling on admissibility is separate and distinct from the weight which the jury chose to give to Lopez's testimony. Indeed, given the limited facts which counsel had to work with, she argued in the guilt-innocence phase that his identification was suspect and thus should not be given any weight.
Although a "show up" identification — where a witness observes only a single suspect — is subject to close scrutiny as to suggestiveness. E.g. See Johnson v. Dugger, 817 F.2d 726, 728-29 (11* Cir. 1987); United States v. King, 148 F.3d 968 (8th Cir. 1998), the mere fact that such procedure was employed does not render a subsequent in-court identification inadmissible. Livingston v. Johnson, 107 F.3d 297, 309-310 (5th Cir.), cert. denied 522 U.S. 880, 118 S.Ct. 204 (1997). Moreover, even if the procedure were unduly suggestive, that fact alone would not render an in-court identification inadmissible. The lynch-pin of an in-court identification is its reliability under a totality of the circumstances. See Manson v. Brathwaite, 432 U.S. 98, 114-15, 97 S.Ct. 2243, 2253 (1977). Applying the factors identified in Manson, it is clear under the evidence regarding Lopez's identification of Petitioner that his in-court identification was admissible and therefore he can show no prejudice due to his counsel's failure to contest the same.
Likewise, any motion to suppress seized items would have been lacking in merit. Since the bag was abandoned by Petitioner he had no standing to seek suppression. Those items in his possession including his clothing were subject to seizure incident to his arrest. Finally, Petitioner gave his consent to search his vehicle. Whether he signed a written consent form is irrelevant since a consent to search need not be in writing.
A review of counsels' examination of the prosecution's witnesses demonstrates no deficiency. As noted in United States v. White, supra, his attorney had very little favorable facts to work with.
Counsel's failure to object to certain statements made by the prosecution in their closing arguments on guilt-innocence and in the punishment phase neither evinces constitutionally deficient counsel nor can Petitioner show that he was prejudiced by such arguments. While strong in content, the arguments constitute fair comments on the evidence presented and the permissible inferences which could be drawn from the evidence which the jury heard.
He next complains of counsel's failure to request an instruction regarding the voluntariness of his written statement as authorized by art. 38.23, Texas Code of Criminal Procedure. While counsel could have requested that such an instruction be given, Petitioner can show no prejudice. First, it is highly unlikely that a jury would have found coercion, given the testimony of the two interrogating officers which directly contradicted Roberson's version of the interrogation process. Second, even had the jury concluded that his statement was involuntary and therefore disregarded the same, there is no reasonably probability that the jury would not have found Petitioner guilty. The evidence,de hors his written statement, was overwhelming, offset only by Roberson's impeached and uncorroborated, improbable version of the events at the location of the robbery.
Roberson has failed to establish that his trial attorney rendered ineffective assistance of counsel.
Although the magistrate judge has considered this ground on its merits, even were I to find that any of the claims raised had merit, relief would be foreclosed because Petitioner has failed to demonstrate that the Texas courts' denial of relief on this ground constituted an unreasonable application of United States Supreme Court precedents.See 28 U.S.C. § 2254(d)(1); Price v. Vincent, ___ U.S. ___, 123 S.Ct. 1848 (2003).
In his second ground for relief Petitioner accuses the prosecution of knowingly presenting perjured testimony. Specifically he claims that his signature on the consent form authorizing a search of his vehicle was forged. As noted above, a written consent to search is not a prerequisite to an exception to the Fourth Amendment. Moreover, a search of the vehicle probably falls within the warrant exception found by the Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975 (1970). However, dispositive of this claim is the fact that the state courts found that the prosecutor's affidavit, refuting the claim that the prosecution knowingly presented perjured testimony was true.See No. 53, 029-01, at 165-166; 208-09, ¶ 1.
The signed consent form, See No. 53, 029-02 at 117 was not offered at Petitioner's trial.
In his third ground for relief Roberson alleges that the trial court erred in permitting Arthur Lopez to identify him as the robber. For the reasons stated above at pages 5-6, supra, this ground is without merit.
In his final ground for relief Petitioner contends that Detectives Jones and Reidder violated his rights in obtaining his written statement through the use of promises and threats and in failing to terminate the interrogation after he invoked his request to speak to an attorney. In substance this ground also asserts that the trial court erred in admitting his written statement before the jury.
An examination of Roberson's memorandum brief at pages 114-120 refers to testimony presented at trial. Although Roberson himself testified that his statement was given under duress and that he asked to consult with an attorney before questioning continued, both of the police witnesses denied that he was threatened or coerced and denied that Petitioner ever advised that he wanted to speak with an attorney before answering further. The mere fact that Petitioner contradicted the testimony of the police officials does not establish that constitutional violations occurred. In rejecting this claim on the merits when it was presented in the context of his art. 11.07 application, the Texas courts implicitly rejected Petitioner's claims that his statement was obtained in violation of his constitutional rights, thereby crediting the testimony of the police officers. A federal court must apply all inferences fairly deductible from the State courts' findings, in this case — that Roberson's rights were not violated. See Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 851 (1983). The facts found by the state courts do not fall within the exception under § 2254(d)(2), thereby foreclosing relief.
It is inconceivable that had the trial court believed Petitioner's testimony in support of his art. 11.07 application, that it would have recommended that relief be denied on this ground. Accord see Marshall, 434-35, 103 S.Ct. at 850.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied and dismissed.
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 days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en bane), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or 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.