Opinion
NO. 3-03-CV-1618-P
December 2, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gary Eugene Sims, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of aggravated sexual assault with a deadly weapon and sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal. Sims v. State, No. 08-01-00121-CR (Tex.App.-El Paso, Jul. 11, 2002, pet. ref d). Petitioner also filed an application for state post-conviction relief. The application was denied without written order on the findings of the trial court. Exparte Sims, No. 55, 495-02 (Tex.Crim.App. Jun. 10, 2003). Petitioner then filed this action in federal court.
II.
Petitioner raises four broad issues in six grounds for relief. Succinctly stated, petitioner contends that: (1) the prosecutor violated his right to a fair trial by presenting false testimony, asking improper questions, and failing to disclose exculpatory evidence; (2) he received ineffective assistance of counsel; (3) the evidence was insufficient to support a deadly weapon finding; and (4) extraneous offense evidence was improperly admitted during the punishment phase of the trial.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A"). See Pub.L. 104-132, 110 Stat. 1214 (1996). Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may grant habeas relief only if: (1) the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or; (2) the state court decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] 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., 120 S.Ct. at 1523. See also Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003). Stated differently, "a federal court may grant relief when a state court has misapplied a 'governing legal principle' to 'a set of facts different from those of the case in which the principle was announced.'" Id., 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, __, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous — the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
B.
Petitioner first contends that the prosecutor violated his right to a fair trial by presenting false testimony, asking improper questions, and failing to disclose exculpatory evidence. The court will address these claims in turn.
1.
The due process clause prohibits the use of perjured testimony to obtain a conviction. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992). In order to establish a due process violation based on the use of perjured testimony, a habeas petitioner must prove that: (1) the testimony was false; (2) the prosecutor knew it was false; and (3) the evidence was material. Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.), cert. denied, 115 S.Ct. 671 (1994). Evidence is "material" only if there is a reasonable probability that it affected the outcome of the trial. See United States v. O'Keefe, 128 F.3d 885, 894 (5th Cir. 1997), cert. denied, 118 S.Ct. 1525 (1998) (citing cases).
During the early morning hours of February 6, 2000, Amanda M. encountered petitioner in the near-empty parking lot of her apartment complex. Petitioner ordered Amanda into his car at gunpoint and drove to his house. Upon their arrival, petitioner locked himself and Amanda in his bedroom and instructed her to disrobe. The bedroom door did not have a knob, only a lock. When Amanda refused to take off her clothes, petitioner beat her with his fists and a fireplace poker, fired a gun in her direction, and broke her arm with a lamp. Afraid for her life, Amanda reluctantly succumbed to petitioner's demands. Petitioner forced Amanda to undress, drink beer and champagne, and smoke from a glass or metal pipe. Amanda noticed a flash to the side as petitioner took photographs of her drinking and smoking. Petitioner then took Amanda into the bathroom and raped her over a sink lined with pillows. After the assault, petitioner gave Amanda some food and fell asleep on the bed. ( See St. Trial Tr-V at 10-27).
The victim's last name has been withheld to protect her identity.
While petitioner was asleep, Amanda called the police to report the assault. Petitioner awoke and found Amanda on the phone. When petitioner asked who she was speaking to, Amanda said that she was calling for a cab to take her home. Petitioner snatched the phone out of her hand and angrily told the party on the line, "Well, I'll take her where she want[s] to go." ( Id. at 31-32). Amanda proceeded to testify:
— and he was pacing and scratching his head with the gun saying, "What — what am I gonna do now? I can't lose everything behind this. I've never done this before. You've caused me to do something I've never done before. What am I gonna do? You know, you should shouldn't have been trying to steal from me; you shouldn't have been trying to do this."
* * *
Q: [BY PROSECUTOR]: You didn't know if any of that was true or not, did you, at that point?
A: None of that was true. I wasn't trying to steal.
Q: You weren't trying to take any of his property or trying to steal from him?
A: No, I just wanted to get out of there.
( Id. at 32-33).
Petitioner offered a slightly different version of his encounter with Amanda. At trial, petitioner testified that he and Amanda had a consensual sexual relationship in a "money type" arrangement. Petitioner admitted going to Amanda's apartment and driving her to his house where they had sex. Afterwards, petitioner caught Amanda with his wallet, watch, and gun. A struggle ensued, causing the gun to discharge. ( See id. at 154-66). Petitioner now contends that Amanda lied about not stealing from him and blames the prosecutor for failing to correct her misstatements. However, as the state appellate court correctly noted, "there is no evidence that [Amanda's] testimony was false and made with the intent to deceive." Sims, No. 08-01-00121-CR, op. at 5. The jury was able to consider this conflicting testimony in evaluating the credibility of the witnesses. Without more, petitioner has failed to establish a constitutional violation. See Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990), citing Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988) (contradictory testimony, standing alone, is not tantamount of perjury); Scott v. Cockrell, 2003 WL 21518005 at *4 (N.D. Tex. Jun. 30, 2003), adopted, 2003 WL 21769801 (N.D. Tex. Jul. 21, 2003) (same).
2.
Next, petitioner criticizes the prosecutor for asking improper questions. At issue are three leading questions propounded to witnesses during the course of the trial. On direct examination, the prosecutor asked Amanda, "Did you think . . . [petitioner] was going to kill you?" (St. Trial Tr-V at 22). Although technically a leading question, the state appellate court held "it was properly asked to develop testimony from [Amanda] and guide her." Sims, No. 08-01-00121-CR, op. at 6, citing TEX. R. EVID. 611(c).
Texas Rule of Evidence 611(c) provides:
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
The prosecutor also asked petitioner a series of leading questions on cross-examination. After petitioner testified that he photographed Amanda out of fear of being robbed, the prosecutor inquired:
Q: All right. That didn't have any-anything to do with maybe you thought this out beforehand?
A: No, sir.
Q: No door knobs, take a picture, make her smoke, make her drink: "In case something happens, aha, I can tell the police this." That wasn't your thinking, was it?
A: Does it really make sense to rape and rob or kidnap somebody and then give them a ride home? Does that really make sense? Like the gentleman said the other day, like he said, when you steal my car, "I'm going to steal your car"
[PROSECUTOR]: Judge, I'll object —
A: — "and let me give you a ride home?"
[PROSECUTOR]: I'll object again to nonresponsive to my question.
THE COURT: Sustained.
Q: Did you understand my question?
A: Yes, sir.
Q: I assume your answer, from your rumblings, were that no, that was not your intent; that's not why you did these things.
A: I — I didn't — I don't — I didn't pre-plan no — none of these events, sir.
(St. Trial Tr-V at 191-92) (emphases added). The state appellate court determined that the first question was proper "because it was asked during cross-examination and was relevant since it probed [petitioner's] motive and intent." Sims, No. 08-01-00121-CR, op. at 6. The second question, which was asked as a follow-up to petitioner's response denying any plan or scheme to rape Amanda, was also proper cross-examination. Sims, No. 08-01-00121-CR, op. at 6, citing TEX. R. EVID. 611(b). Petitioner has failed to show that these rulings are unreasonable in light of the state court record. See also Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 710, 711 (5th Cir. 1986) (misapplication of state procedural rules does not rise to the level of a constitutional violation).
3.
Petitioner further contends that the prosecutor failed to turn over certain photographs he took of Amanda drinking beer and champagne prior to the sexual assault. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that the suppression of evidence favorable to the defense violates due process when the evidence is material to either guilt or punishment. Id., 83 S.Ct. at 1196-97. However, "when the information is fully available to the defendant and his reason for not obtaining and presenting the information is his lack of reasonable diligence, the defendant has no claim under Brady." Mattheson v. King, 751 F.2d 1432, 1444 (5th Cir. 1985), cert. dism'd, 106 S.Ct. 1798(1986). Such is the case here. Presumably, petitioner knew about the photographs taken by him. Under these circumstances, there is no Brady violation.
C.
In multiple grounds for relief, petitioner contends that he received ineffective assistance of counsel at trial. Although it is difficult to decipher the precise nature of his claims, petitioner apparently believes that his attorney should have objected to certain physical evidence introduced by the state and various instances of prosecutorial misconduct.
1.
The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when the performance of counsel falls below an objective standard of reasonable professional conduct and thereby prejudices the defense. Yarborough v. Gentry, 124 S.Ct.1, 2003 WL 22382563 at *2 (U.S. Oct. 20, 2003), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
At trial, the state introduced five photographs of the victim, two audio tapes of her telephone call to the police, 15 photographs of the crime scene, and the handgun, lamp, and fireplace poker used in the assault. ( See St. Trial Tr-V at 39-40, 139-41). Defense counsel did not object to any of this evidence. Although petitioner now claims that his attorney should have obtained "test results on tangible objects," he fails to elaborate on this conclusory assertion. Nor does petitioner articulate any basis for objecting to the photographs and physical evidence introduced by the state. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000) (conclusory assertions insufficient to merit habeas relief). To the extent that petitioner contends his attorney should have objected to various instances of prosecutorial misconduct, the court has previously determined that no misconduct occurred. Counsel was not required to make frivolous objections at trial. See Koch, 907 F.2d at 527. These grounds are without merit and should be overruled.
D.
Petitioner also challenges the sufficiency of the evidence to support the finding that he used or exhibited a deadly weapon because the victim did not have powder burns on her face. At trial, Amanda testified that petitioner forced her into his car at gun point. (St. Trial Tr-V at 14-15). When Amanda refused to take off her clothes, petitioner beat her with a lamp and a fireplace poker and fired a gun near her face. ( Id. at 22). The gun and a bullet were recovered from petitioner's bedroom. The police also found bullet holes in the mattress and wall. ( Id. 138-40). Noting that a firearm is a deadly weapon under Texas law, the state appellate court found the evidence legally sufficient to support a deadly weapon finding. Sims, No. 08-01-00121-CR, op. at 10, citing TEX. PENAL CODE ANN. § 1.07(17)(A) (Vernon 1994). The fact that Amanda did not have powder burns on her face "was exclusively within the jury's province to resolve[.]" Id. This determination, which is entitled to "great weight" on federal habeas review, is not unreasonable in light of the evidence presented in the state court proceeding. See Parker v. Procunier, 763 F.2d 665, 666 (5th Cir. 1985).
E.
Finally, petitioner contends that extraneous offense evidence was improperly admitted during the punishment phase of the trial. At issue is the testimony of two women who accused petitioner of nearly identical sexual assaults in 1995 and 1996. According to petitioner, the admission of this evidence violated his rights under Article 37.07 of the Texas Code of Criminal Procedure.
This claim fails for two reasons. First, federal habeas relief is only available to correct errors of constitutional dimension. See 28 U.S.C. § 2254(a); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 104 S.Ct. 2367(1984). Petitioner has failed to show how the misapplication of this state statute implicates a constitutionally protected right. Second, this evidence was clearly admissible under Texas law. Article 37.07 provides, in pertinent part:
The Fifth Circuit has held that the admission of extraneous offense evidence during the punishment phase of a capital murder trial does not implicate federal constitutional concerns. See Harris v. Johnson, 81 F.3d 535, 541 n. 22 (5th Cir.), cert. denied, 116 S.Ct. 1863 (1996) (citing cases). There is no reason why a different result is warranted in a non-capital case.
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2002). The trial court instructed the jury not to consider evidence of any unadjudicated extraneous offenses "unless you first find and believe beyond a reasonable doubt that the defendant committed such other acts or participated in such transactions[.]" (St. App. Tr. at 69). The fact that petitioner was never charged with or convicted of these other sexual assaults does not affect the admissibility of this evidence for sentencing purposes. See Smith v. Cockrell, 2003 WL 21730658 at *6 (N.D. Tex. Jul. 24, 2003), adopted, 2003 WL 21960362 (N.D. Tex. Aug. 15, 2003) (evidence of unadjudicated robbery was properly admitted at punishment phase of trial). This ground for relief is without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.