Opinion
No. 3-02-CV-1985-P
January 29, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Huey P. Smith, 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 robbery following a bench trial. Punishment, enhanced by two prior convictions, was assessed at 40 years confinement. His conviction and sentence were affirmed on direct appeal. Smith v. State, No. 05-98-01231-CR (Tex.App.-Dallas, Nov. 29, 1999, pet. ref'd). Petitioner also filed two applications for state post-conviction relief. The first application was denied without written order. Ex parte Smith, No. 49,618-01 (Tex.Crim.App. May 8, 2002). The second application was dismissed as successive. Ex parte Smith, No. 49,618-02 (Tex.Crim.App. Jul. 31, 2002). Petitioner then filed this action in federal court.
II.
Petitioner raises two broad issues in multiple grounds for relief. Succinctly stated, petitioner contends that: (1) he was denied due process by the state's failure to disclose exculpatory evidence; and (2) he received ineffective assistance of counsel at trial and on appeal. Respondent counters that most of these claims are barred from federal habeas review because they were raised for the first time in a state writ that was dismissed as successive. The court will address the procedural bar issue first.
A.
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). 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). Article 11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first writ. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). This statute constitutes an adequate state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603 (1995).
The statute provides, in relevant part, that:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt . . .
TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a).
None of the grounds alleged by petitioner in his federal habeas petition were raised on direct appeal in state court. In his first application for state post-conviction relief, petitioner argued, inter alia, that his appellate lawyer should have filed a motion for new trial on grounds of ineffective assistance of trial counsel. (St. Hab. Tr-I at 11-20). According to petitioner, trial counsel: (1) failed to interview or subpoena certain alibi witnesses; (2) did not request video tapes and radio transmission logs of his initial traffic stop; and (3) failed to discover that a void conviction had been used for enhancement purposes. ( Id. at 14-15). These claims were considered on the merits and rejected by the state habeas court. ( Id. at 43-47). Dissatisfied with this result, petitioner reurged the same grounds in a second writ. (St. Hab. Tr-II at 19-21, 21-23, 30-31). Petitioner also argued, for the first time, that: (1) he was denied due process by the state's failure to disclose exculpatory evidence; and (2) trial counsel was ineffective for failing to interview the state's witnesses, advising him to waive a jury and admit the validity of a void conviction, and failing to request an expert on cross-cultural identification. ( Id. at 16-18, 23-25, 25-27, 28-29, 31-32). The second writ was dismissed as successive under article 11.07, § 4. Ex parte Smith, No. 49,618-02 at cover.
Petitioner raised three points of error on direct appeal: (1) the trial court failed to suppress evidence seized during the search of his car; (2) the victim's in-court identification testimony should have been excluded; and (3) the trial court improperly allowed a witness to testify after he remained in the courtroom after "the Rule" had been invoked. See Smith, No. 05-98-01231-CR.
In an attempt to excuse this procedural default, petitioner maintains that his second writ was not "successive" because the only relief sought by his first writ was an out-of-time appeal due to ineffective assistance of appellate counsel. (Pet. Br. at viii-ix, citing Ex parte McPherson, 32 S.W.3d 860 (Tex.Crim.App. 2000); Pet. Reply at 2-3) The state habeas court rejected this argument, noting that "[a]pplicant cannot complain about trial counsel in terms of ineffective assistance of counsel at the appellate level in order to avoid the intent of Tex. Code Crim. Proc. Art. 11.07 that requires all issues pertaining to the trial be raised in one writ." (St. Hab. Tr-I at 43). This court must defer to the state court's interpretation of Texas law. There is no reason why petitioner could not have raised all of his ineffective assistance of counsel claims in his first state writ. His failure to do so precludes federal habeas review of those claims presented for the first time in a writ that was dismissed as successive. Fearance, 56 F.3d at 642.
In McPherson, the Texas Court of Criminal Appeals held that an initial state writ seeking only the opportunity to file an out-of-time appeal and not challenging the underlying conviction did not bar a subsequent writ under article 11.07, § 4 of the Texas Code of Criminal Procedure. McPherson, 32 S.W.3d at 861. Although petitioner's argument is attractive in principle, it is not applicable to the facts of this case. Unlike McPherson, petitioner filed his first state writ after his conviction had been affirmed on direct appeal. Therefore, despite his characterization of the relief sought by that writ, petitioner's ineffective assistance of counsel claim was a challenge to the validity of his conviction sufficient to invoke the procedural bar of article 11.07, § 4. See Highman v. Johnson, 2001 WL 611160 at *1 (N.D. Tex. May 31, 2001).
B.
Petitioner contends that he received ineffective assistance of counsel because his attorney:
(1) failed to interview or subpoena certain alibi witnesses; (2) did not request video tapes and radio logs of his initial traffic stop; (3) failed to discover that a void conviction had been used for enhancement purposes; and (4) did not file a motion for new trial on grounds of ineffective assistance of counsel. These claims, which were raised or implicated by petitioner's first state writ, are not barred from federal habeas review.
1.
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, 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. 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). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
2.
In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner first must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). 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).
3.
Petitioner complains that his attorney failed to interview or subpoena Greg McIntosh, his traveling companion on the day of the robbery, and unnamed employees of a car lot and window tint shop, who allegedly saw him that day. He also criticizes his lawyer for not requesting video tapes and radio transmission logs of his initial traffic stop by the police. According to petitioner, this evidence would have helped him prove his alibi defense and impeach the testimony of the arresting officer. The state habeas court rejected these claims on collateral review. Specifically, the court found that "[a]pplicant has not established that [these witnesses were] available to testify or would testify favorable to him at trial" and "there is no evidence that [the video tapes and radio logs] exist or [are] favorable to Applicant." (St. Hab. Tr-I at 44-45). Petitioner has failed to adduce any evidence, much less clear and convincing evidence, to rebut these findings. His conclusory assertions are insufficient to merit habeas relief. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot begin to analyze claim of ineffective assistance of counsel without affirmative showing of missing evidence or testimony).
At trial, petitioner's wife and mother in-law testified that petitioner and McIntosh had left Little Rock, Arkansas en route to Dallas, Texas at 7:00 a.m. on September 19, 1997, the day the robbery was committed. Petitioner testified that he was still traveling toward Dallas at 10:30 a.m. that morning. Evidently, the trial judge did not believe this alibi testimony. See Smith, No. 05-98-01231-CR, op. at 2.
Petitioner further contends that trial counsel was ineffective for failing to discover that a void conviction had been used for enhancement purposes. At issue is a 1984 burglary conviction out of Cass County, Texas. Upon the advise of counsel, petitioner admitted the validity of this prior conviction and pled true to the enhancement paragraph alleged in the indictment. He now contends that the burglary charge was dismissed. Although petitioner has produced a document showing that State v. Huey P. Smith and Albert Lee Runnels, No. 17,008. was dismissed on April 28, 1986. respondent has learned that this case was dismissed only as to Albert Lee Runnels. (Resp. Ans. at 15). Moreover, TDCJ-ID records indicate that petitioner completed a 10-year sentence on the burglary charge in 1992. ( Id., Exh. A). Petitioner has failed to rebut any of this evidence or otherwise demonstrate that his prior conviction was void.
Petitioner has filed a reply challenging many of the arguments contained in respondent's answer. However, he does not contest respondent's assertion that the 1984 burglary case was dismissed only as to Albert Lee Runnels. Nor does petitioner explain the TDCJ-ID records showing that he served 10 years in prison for burglary.
Finally, petitioner argues that his appellate lawyer should have raised these ineffective assistance of counsel claims in a motion for new trial. The state habeas court soundly rejected this argument:
The court finds that counsel was not ineffective and even if these issues had been raised in a motion for new trial, the motion would have been denied. The complaining witness identified Applicant has [sic] the person who committed the crime. The Applicant's car was identified as the one driving away from the scene of the crime at the time of the attack. The victim's credit cards were found in Applicant's car when it was stopped later that day. The evidence of Applicant's guilt is abundant and nothing counsel did, or according to Applicant, should have done, would have affected the outcome of these proceedings.
(St. Hab. Tr-I at 45-46). Absent clear and convincing evidence to the contrary, this finding is entitled to a presumption of correctness. Petitioner has failed to adduce such evidence. Consequently, these grounds for relief should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.