Opinion
No. 3:02-CV-0844-R
April 20, 2004
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, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
A jury convicted Petitioner of aggravated robbery. State v. Smith, No. F-97-31732-QI (Crim. Dist. Court No. 2 Dallas County, Tex. Jan. 22, 1998). He was sentenced to fifteen years in TDCJ-CID custody. Id. Petitioner appealed his conviction. His conviction was affirmed by the Fifth Court of Appeals. Smith v. State, No. 05-98-00146-CR (Tex.App.-Dallas 2000, pet. ref d.). His petition for discretionary review was refused by the Texas Court of Criminal Appeals on November 1, 2000. P.D.R. No. 1695-00. His petition for writ of certiorari to the United States Supreme Court was refused on April 23, 2001.
Petitioner filed a state writ application on July 20, 2001. Ex parte Smith, No. 50,884-01 (Tex.Crim.App. Dec. 19, 2001). It was denied without written order. Id. Petitioner filed his petition pursuant to 28 U.S.C. § 2254 on April 14, 2002.
Exhaustion of State Court Remedies
Respondent states that two of Petitioner's claims are procedurally defaulted. Respondent does not seek dismissal for failure to exhaust state court remedies.
Issues
Petitioner alleges the following grounds for relief:
1. The district court abused its discretion by not providing the deliberating jury with copies of requested transcript of witnesses' testimony in lieu of "read-back" and allowed perjured and false testimony to go uncorrected;
2. The prosecution denied the applicant the substantial right to a fair trial by admitting false testimony about evidence and association, and improperly encouraged the jury to convict applicant based on false testimony that was improperly admitted as evidence; and
3. There was no evidence that connected the applicant to the robbery or that the applicant acted as a party to the alleged crime to support the judgment of conviction for aggravated robbery under the law of party.
These grounds for relief are taken directly from Petitioner's Memorandum of Law and Authorities to support his petition, page 2.
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).The pertinent terms of the AEDPA provide:
(d) An application for 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 the adjudication of the claim —
(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Petitioner's state habeas application was denied on the merits.
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.
Statement of Facts
There was testimony that [Petitioner] and three male companions stole trash cans from a car wash, emptied them, and placed them in the back of a stolen pickup truck. Two of the men then drove the truck to a neighboring Racetrac service station while the other two walked to the Racetrac. The four men left two cars at the carwash, including one belonging to [Petitioner]. All four men entered the Racetrac, and one of the men, later identified as Anthony Oudems, pulled a gun on an employee and compelled her to open the register. At the same time, one or more of the other men broke into the cigarette cases, loaded cartons of cigarettes into the trash cans taken from the car wash, and carried them to the rear of the truck.
Apparently summoned by a witness, the police arrived moments later and the four men attempted to flee. Oudems ran out one door and was caught by a police officer. The other three men went out another door and in a different direction. Based on a witness's statement, police searched a neighboring yard, where they found three men including [Petitioner]. The three ran again but were caught. Although Oudems denied that [Petitioner] was a party to the robbery, he admitted his own guilt and explained the trash cans were taken as a means to carry away the stolen cigarettes.Smith v. State, 2000 WL 968244 at 1.
THRESHOLD ISSUE-STATE PROCEDURAL DEFAULT
Respondent contends that Petitioner's first and second claims are procedurally defaulted. Petitioner raised his first and second claims for the first time on state habeas corpus review. Ex parte Smith at 12, 19. However, Petitioner did not alert the state court that he was raising federal constitutional claims. Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the '"opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Baldwin v. Reese, 124 S.Ct. 1347, 1349-1350 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). To provide the State with the necessary "opportunity," the prisoner must "fairly present" his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Baldwin, 124 S.Ct. at 1349-50; Duncan, 513 U.S. at 365-366.
In this case, Petitioner failed to "fairly present" his first two claims because he never alerted the state courts that he was contending the trial court and the prosecutor violated federal law. His first claim was that the district court abused its discretion by not providing the deliberating jury with copies of requested transcript of witnesses' testimony in lieu of "read-back" and allowed perjured and false testimony to go uncorrected. Petitioner did not alert the state court to any violation of federal law or cite any federal law in support of his claim. The same is true for his second claim. Petitioner claimed for the first time in his state habeas application that the prosecution made suggestions, insinuations, and assertions calculated to mislead the jury about evidence that was never obtained and exposed untrue and perjured testimony to inflame the jury. In his petition, Petitioner claimed that the prosecutor's misconduct deprived him of a fair trial, but he never mentioned a violation of federal law or cited any federal law in support of his claim.
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows cause for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989).
Respondent argues Petitioner's first two claims are unexhausted and procedurally barred because Petitioner failed to present claims that encompassed federal violations to the Texas Court of Criminal Appeals either in a petition for discretionary review or a state habeas writ. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claim procedurally barred. Id.
The state record reflects that Petitioner failed to raise federal violations with respect to his first two claims. If this Court required him to do so, the claims would be subject to dismissal under the Texas abuse-of-the-writ doctrine. TEX. CODE CRIM. PRO. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). "[A]rticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and . . . has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law. . . ." Id. (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524.
Petitioner has shown no cause for his failure to present to the Texas Court of Criminal Appeals any federal claims with respect to the trial court's "read-back" to the jury and prosecutorial misconduct. Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. This exception is "confined to cases of actual innocence, 'where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). To establish the required probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Petitioner has failed to show any new evidence, not presented at trial, that he is actually innocent. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on Petitioner's first two claims.
Sufficiency of the Evidence
Petitioner claims the evidence was legally and factually insufficient to show that he committed the offense. Federal habeas review of an insufficiency of the evidence claim 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 (1979). The evidence must be viewed in the light most favorable to the verdict. Jackson, 443 U.S. 319. This standard of review applies in both direct and circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990).
A federal court must, on habeas corpus review, give great weight to a state court's determination of the sufficiency of the evidence. Parker v. Procunier, 763 F.2d 665, 666 (5th Cir. P1985).
Petitioner argued in his state court appeal that "no witness identified him as a robber" and that the "State proved no more than that he was present when the robbery occurred and ran from the scene." Smith v. State, slip op. at 1. The Statement of Facts set out in these findings contains the facts that the state appellate court reviewed and found sufficient to support the conviction. The state appellate court held that the evidence did not support Petitioner's argument and that it was legally sufficient. Id. See Jackson, 443 U.S. at 319.
This Court has thoroughly reviewed the record and finds that the state court's denial of habeas corpus relief did not result in a decision that was contrary to, or involved an unreasonable application of, the United States Supreme Court's clearly established law. Moreover, it did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, Petitioner is not entitled to federal habeas corpus relief. See 28 U.S.C. § 2254(d).
RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus be DENIED.