Opinion
No. 3-01-CV-1000-M
January 22, 2002
FINDINGS AND RECOMMENDATION OF TILE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Lester Shaw was convicted of aggravated robbery and sentenced to 50 years confinement. His conviction and sentence were affirmed on direct appeal. Shaw v. State, No. 05-96-01162-CR (Tex.App.-Dallas, Nov. 28, 1998, pet. ref'd). Instead of collaterally attacking his conviction in state court, petitioner sought federal habeas relief. His petition was dismissed without prejudice for failure to exhaust state remedies. Shaw v. Johnson, No. 3-99-CV-2954-T (N.D. Tex. Sept. 25, 2000), COA denied, No. 00-11132 (5th Cir. Feb. 14, 2001). Petitioner then filed an application for state post-conviction relief. The Texas Court of Criminal Appeals denied the application without written order. Ex parte Shaw, No. 49, 078-01 (Tex.Crim.App. Apr. 18, 2001). Having satisfied the exhaustion requirement, petitioner now reurges the grounds contained in his first federal habeas petition.
II.
Petitioner raises four issues in six grounds for relief. He contends that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in reprimanding him before the jury; (3) certain evidence was improperly admitted at his trial; and (4) the prosecutor made an improper jury argument.
A.
The standard of review in federal habeas proceedings is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct. 2001 (2001).
B.
Petitioner first contends that the evidence was legally and factually insufficient to support his aggravated robbery conviction. Specifically, petitioner argues that the state failed to prove that: (1) he placed the victim in fear of imminent bodily injury by using or exhibiting a firearm; or (2) he was the person who tried to steal the victim's automobile.
Respondent correctly notes that factual insufficiency of the evidence does not provide an independent basis for federal habeas relief. "Factual insufficiency' is a creation of Texas law whereby the reviewing court scrutinizes the factfinder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). However, the relevant inquiry in a federal habeas proceeding is whether "[a] rational trier of fact could have found proof of guilt beyond a reasonable doubt.' Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir.), cert. denied, 111 S.Ct. 265 (1990), quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). This standard of review controls even if state law would impose a more demanding standard of proof. Schrader, 904 F.2d at 284. See also Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991).
1.
Federal habeas review of a claim based on sufficiency of the evidence is extremely limited. A federal court may not disturb a conviction in a state criminal proceeding unless no rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Gibson v. Collins, 947 F.2d 780, 781 (5th Cir. 1991), cert. denied, 113 S.Ct. 102 (1992). The evidence must be viewed in the light most favorable to the verdict. Jackson, 99 S.Ct. at 2789; Gibson, 947 F.2d at 781. This standard of review applies in both direct and circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir.), cert. denied, 111 S.Ct. 265 (1990).
2.
Federal courts are bound by state statutes and case law in determining the elements of an offense. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Under Texas law, a person commits aggravated robbery if: (1) while in the course of committing theft, (2) with the intent to obtain or maintain control of property, (3) he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death, and (4) uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. §§ 29.03(a)(2) 29.02(a)(2) (Vernon 1994); Brewer v. State, 852 S.W.2d 643, 645 (Tex.App.-Dallas 1993, pet. ref'd).
3.
Petitioner was charged with threatening or placing Baraka Jabbar Johnson in fear of imminent bodily injury by using or exhibiting a firearm while attempting to steal his car. (St. App. Tr. 3). The evidence adduced at trial shows that Antoine Jones and Johnson went to visit Aljanic Keeton during the early morning hours of August 6, 1995. (SF-III 91-92, 126, 196-97). They drove Johnson's Oldsmobile Cutlass. ( Id. at 92, 126). Johnson remained in his car while Jones went into the house. ( Id. at 92, 126, 198-99). As Jones returned to the car with Keeton, two men in a small blue vehicle pulled up beside them. ( Id. at 99-101, 200). The driver asked for someone named "Shamika." ( Id. at 104, 200). Keeton told the men they had the wrong house. ( Id. at 104, 200). At that point, the blue car drove away. However, the men returned less than a minute later. ( Id. at 99, 104, 201). As they approached Johnson's vehicle, the driver of the blue car started shooting. ( Id. at 99, 105, 200-01). The passenger in the blue car jumped out, got into the Cutlass, and told Johnson "[y]ou're coming up out of your car." ( Id. at 105-06, 128-29). Johnson pulled a gun and shot back at his assailants. ( Id. at 107, 130-32). The man ran from Johnson's car, fell down, and crawled into the blue car as it sped away. ( Id. at 108, 136). Jones retrieved a .380 caliber semi-automatic pistol from the ground. ( Id. at 108-09, 140). Keeton identified the driver of the blue car as brown-skinned with a short hair cut. She said that petitioner looked like the driver "from the nose on up." ( Id. at 202, 235, 242). Petitioner's fingerprints were also found on the gun. ( Id. at 294, 315-16, 320).
Dallas Police Officer John Cashman testified that he encountered petitioner that morning while responding to a hit-and-run call involving a blue car. ( Id. at 249-52). Kimberly Jones called the police to report the incident. ( Id. at 172). She followed the blue car to a convenience store and observed the driver exit the vehicle. ( Id. at 171-72). When the driver returned to the car, he pulled someone out. ( Id. at 172). The driver said his friend had been shot. ( Id.). Petitioner admitted to Cashman that he was the driver of the blue car. He said that the injured man drove up in a blue car and asked for help. ( Id. at 252-53). Petitioner got into the car and drove to the convenience store. ( Id. at 253). The injured man later died of a gunshot wound. ( Id. at 273).
This evidence, although largely circumstantial, is sufficient to prove beyond a reasonable doubt that petitioner was the driver of the blue car who shot at Johnson. The passenger in the blue car threatened Johnson while attempting to steal his automobile. Johnson shot the passenger, who later died as a result of his wounds. Petitioner's fingerprints were found on a .380 caliber semiautomatic pistol recovered from the scene of the shooting. The state appellate court found that "[a] jury could rationally conclude, under the circumstances, the deceased threatened or placed complainant in fear of imminent bodily injury when he demanded complainant to get out of the car. Furthermore, the jury could conclude that [petitioner's] action of firing shots just before the passenger entered the vehicle facilitated the robbery." Shaw, No. 05-96-01162-CR, op. at 3. This decision is neither contrary to clearly established federal law nor "unreasonable" in light of the evidence presented at trial. See 28 U.S.C. § 2254 (d). Accordingly, this ground for relief should be overruled.
C.
Petitioner further complains that the trial court violated his right to a fair trial by reprimanding him in front of the jury. The record shows that petitioner made several outbursts during closing argument:
Petitioner also accuses defense counsel of acting "in concert' with the trial judge. (Habeas Pet. at 8). To the extent that petitioner intends to assert a claim of ineffective assistance of counsel, he is procedurally barred from doing so. Such a claim was never raised on direct appeal or collateral review in state court, and any attempt to file a successive habeas petition on this ground would be futile. See TEX. CODE CALM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2001) (second habeas petition prohibited if petitioner urges grounds that could have been, but were not, raised in first habeas petition); Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546. 2557 n. 1, 115 L.Ed.2d 640 (1991) (procedural default occurs when prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred").
[PROSECUTOR]: There is a fingerprint in this case. It was on that magazine. He put it there.
THE DEFENDANT: No I didn't.
[PROSECUTOR]: And the only way that he can get out from under this rock that he is in or under, is if he gets ya'll to believe that the science of fingerprinting is whatever. Unh-uh. (Witness shaking head negatively.)
His fingerprint is on that magazine and he put it there, and he wants to get out from under it.
Mr. Morrow talked about Aljanic. And she never said that one hundred percent that the defendant is the one who did it. She said, "From what I saw, from his nose up, and his skin color, that this is the person that did it." What more can the girl do?
She saw this part of [h]is face, and she saw his skin tone, and she said, "Based on what I saw, that guy has the same distinct features and skin tone."
I'm sorry. That is all the girl can do, is come down here, and tell you that is what I saw and it matches this guy.
THE DEFENDANT: I'm not matching anything.
[DEFENSE COUNSEL]: Stop that. The Judge is not going to tolerate that.
THE DEFENDANT: Oh, man.
THE COURT: Mr. Morrow, can you instruct you[r] client not to speak during Mr. Grau's argument. If you do, sir, you will be removed and the sound will be piped in to you. Is that clear?
[DEFENSE COUNSEL]: Yes, sir. Thank you.
(SF-IV 455-56).
On direct appeal, the state court found that the trial judge and defense counsel properly warned petitioner of the consequences of interrupting the prosecutor during his closing argument. Shaw, No. 05-96-01162-CR, op. at 4. This decision is entirely consistent with federal law and manifestly reasonable under the circumstances. See United States v. Stratton, 649 F.2d 1066, 1080 n. 21 (5th Cir. 1981), citing Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970) (exclusion of criminal defendant from trial following persistent disruptive conduct and warning not abridgment of right to be present in courtroom at trial). See also United States v. Kizzee, 150 F.3d 497, 502 (5th Cir. 1998) (conduct of trial is matter within sound discretion of trial court). This ground for relief is without merit and should be overruled.
D.
In a related ground, petitioner argues that the trial judge violated article 38.05 of the Texas Code of Criminal Procedure by threatening to remove him from the courtroom if he made further outbursts.
Article 38.05 of the Texas Cede of Criminal Procedure provides:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.
TEX. CODE CALM. PROC. art. 38.05 (Vernon 1979).
The Court initially notes that petitioner has failed to implicate a federal constitutional right. Rather, he has alleged a violation of state law that does not merit habeas relief. See Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir.), cert. denied, 107 S.Ct. 3278 (1987) (claim based on misapplication of state law not cognizable in federal habeas proceeding unless petitioner can establish that the error deprived him of fair trial); Matheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985), cert. dism'd, 106 S.Ct. 1798 (1986) (same). Moreover, as previously discussed, the trial judge's admonishment was manifestly proper in view of petitioner's disruptive behavior. This ground for relief should be overruled.
E.
Finally, petitioner contends that the prosecutor made an improper jury argument and the trial court improperly admitted the identification testimony of Aljanic Keeton. Respondent argues that petitioner is procedurally barred from seeking federal habeas relief on these grounds because he failed to preserve error in the trial court.
Respondent also contends that all of petitioner's claim, except those challenging the sufficiency of the evidence, are procedurally barred because the state habeas court expressly refused to consider them on collateral review. In its findings, the state court concluded that "[a]s these issues were rejected on direct appeal, the court cannot consider them in this application for writ of habeas corpus.' (St. Habeas Tr. 21). Indeed, Texas law precludes a state habeas court from revisiting any issue that was raised and rejected on direct appeal. See, e.g. Exparte Acosta, 672 S.W.2d 470, 472 (Tex.Crim.App. 1984) (court need not address claim on collateral review where same issue was raised on direct appeal); Gonzalez v. State, 994 S.W.2d 369, 372 (Tex.App.-Waco 1999) (claim previously raised and rejected on direct appeal not cognizable in state habeas proceeding). However, respondent has failed to cite any cases applying this rule as a procedural bar to federal habeas review.
1.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Ellis v. Lynaugh, 873 F.2d 830, 837-38 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989). The state court opinion must contain a "plain statement" that its decision rests on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Smith v. Collins, 977 F.2d 951, 955 (5th Cir. 1992), cert. denied, 114 S.Ct. 97 (1993). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982); Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992), cert. denied, 115 S.Ct. 151 (1994). It is well-settled under Texas law that a party must object at the earliest opportunity and obtain a ruling from the trial court to preserve error for appellate review. See Penry v. State, 903 S.W.2d 715, 763 (Tex.Crim.App.), cert. denied, 116 S.Ct. 480 (1995). Moreover, a party waives error with respect to an improper jury argument by not requesting an instruction to disregard and moving for a mistrial after his objection is sustained. See Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App. 1982); Bruns v. State, 924 S.W.2d 176, 178 (Tex.App.-San Antonio 1996, no pet.).2.
Petitioner raised both these issues on direct appeal. The appellate court noted that defense counsel successfully objected to the prosecutor's jury argument, but never asked that the jury be instructed to disregard the improper remark. This waived any error. Shaw, No. 05-96-01162-CR, op. at 13-14. Similarly, counsel allowed the prosecutor to show Keeton a photograph of petitioner taken on the night of the offense before objecting to this identification procedure. The court of appeals noted that this also constitutes a waiver. Id. at 17 ("An appellant should not be permitted to sit idly by while a prosecutor engages in an allegedly impermissibly suggestive photograph identification procedure, and then claim the witness's identification was fatally tainted by that procedure."). The doctrine of waiver is an adequate and independent state ground for procedural default purposes. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). See also Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000), cert. denied, 121 S.Ct. 1250 (2001) (contemporaneous objection rule is adequate procedural bar); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir), cert. denied, 118 S.Ct. 1793 (1998) (Texas courts require defendant to object to improper closing arguments). Accordingly, these claims are precluded from federal habeas review.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.