Opinion
No. 3:03-CV-2932-D.
July 16, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 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 undersigned United States Magistrate Judge. The findings, conclusions, and recommendations 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 filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Andrie Smith ("Smith" or "Petitioner") is confined at the Alfred D. Hughes of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Gatesville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Petitioner was charged with aggravated assault with a deadly weapon and entered a plea of not guilty in cause number F-0002104-KT. Smith waived his right to a jury trial and the trial court found him guilty, found the enhancement paragraphs true, and sentenced him to a term of 60 years in the penitentiary.
Petitioner's conviction was affirmed after modifying his judgment and sentence to reflect that there was no plea bargain and that he plead "not true" to the enhancement paragraphs by the Eleventh Court of Appeals in Smith v. State, No. 11-01-00106-CR, (Tex.App.-Eastland February 28, 2002, pet. ref'd) (not selected for publication). Smith's petition for discretionary review ("PDR") was refused on October 30, 2002.
Petitioner filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07. Ex. Parte Smith, Appl. No. 56,955-02. On September 22, 2003 the Texas Court of Criminal Appeals denied Petitioner's application without written order. See Ex Parte Smith, Appl. No 56,955-02 at cover.
Petitioner had previously filed an application for writ of mandamus which was denied without written order on September 24, 2003. Ex Parte Smith, Appl. No. 56,955-01.
Smith filed his petition on September 16, 2003. In response to his petition and this court's show cause order Respondent filed an answer together with copies of Petitioner's prior state proceedings on February 5, 2004. Petitioner filed a traverse on March 4, 2004.
Findings and Conclusions:
Review of Petitioner's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2).
In his first ground, liberally construed and with reference to his art. 11.07 application, Petitioner asserts that the evidence is insufficient to convict him of assault with a deadly weapon TEX. PEN. CODE ANN. § 22.02 because his victim did not sustain serious bodily injury and his fists were not deadly weapons under TEX. PEN CODE ANN. § 1.07(17)(B). In a federal habeas proceeding, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, _99 S. Ct. 2781, 2789 (1979).
In addition to the legal sufficiency of the evidence, a defendant convicted in a Texas state criminal proceeding may raise a claim of factual sufficiency on appeal. See, e.g., Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Although factual sufficiency of the evidence imposes a more stringent burden of proof upon the prosecution, the Fifth Circuit has repeatedly made clear that the only standard under which a state prisoner's conviction is analyzed in a § 2254 petition is that set out in Jackson v. Virginia. See, e.g., Woods v. Cockrell, 307 F.3d 353, 357-58 (5th Cir. 2002); see also West v. Johnson, 92 F.3d 1385, 1394 (5th Cir. 1996) (collecting cases).
The sufficiency of the evidence was raised in the context of his direct appeal and was reviewed and decided by the Eleventh Court of Appeals. The opinion summarized the evidence and the court correctly identified the applicable standard, explicitly citing the United State Supreme Court's decision in Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2788-89, and found that the evidence was sufficient. Smith reiterated his claim in his PDR. The record establishes that the Eleventh Court of Appeal correctly applied the Jackson analysis to Smith's insufficiency of the evidence claim. Moreover, Petitioner cannot demonstrate that this determination satisfied either subpart (1) or (2) of § 2254(d).
Indeed had he raised his claim for the first time in his art. 11.07 application it is highly likely that the state courts would have applied the well-established procedural rule that sufficiency of the evidence claims are not cognizable in collateral proceedings. Rentz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994).
Petitioner next contends that his appellate counsel failed to cite appropriate authorities to the record. The representation afforded by an attorney is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Despite the wholly conclusory nature of this ground, the court has examined this claim in light of the assertions presented in his art. 11.07 application. No. 56, 955-02 at 19-21. Essentially Smith argued that counsel on appeal should have argued that the victim's injuries were not serious or life-threatening. An examination of counsel's appellate brief reflects that such an argument was made, though unsuccessfully. See No. 11-01-00106-CR, opinion delivered on February 28, 2002 at 3-4. Accordingly, Smith's second ground for relief is without merit.
Recommendation :
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.