Opinion
Civil Action No. 4:03-CV-1352-Y.
July 13, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner Olen Michael Smith under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on May 5, 2004;
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on May 26, 2004; and
4. The respondent's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on May 26, 2004.
The Court, after de novo review, finds and determines that the Petitioner's objections must be overruled and the petition for writ of habeas corpus denied for the reasons stated in the magistrate judge's findings and conclusions, and that the Respondent's objections must be sustained, to the extent that some of Smith's claims for relief will alternatively be denied on the basis of procedural default, as set forth herein.
The respondent objects to the magistrate judge's failure to reach his argument that Smith's claims relating to the trial court's rulings related to extraneous offense evidence (claims one, two, three, four, five, six, seven, eight, nine, and sixteen) were barred by procedural default. The magistrate judge reviewed such claims on the merits and determined that Smith was not entitled to relief. As noted below, that recommendation is hereby adopted. The magistrate judge did recommend that Smith's claims of ineffective assistance of counsel (claims fourteen, fifteen, and seventeen) were procedurally barred, and recited the legal standards for determining when a claim is procedurally defaulted. This Court has now carefully reviewed Smith's grounds for relief in this Court, the respondent's answer, and Smith's presentation of claims in state court, and finds and determines that as to the pending § 2254 petition, Smith's claims one through three, five through nine, and sixteen, are alternatively barred from review by this Court on the basis of procedural default, for the reasons set forth in the respondent's answer at pages 4-8.
As noted by the respondent, Smith's petition for discretionary review did not assert any federal constitutional claims as grounds for relief, and included only two brief references to the Constitution. Smith v. Texas, No. 02-00-098-Cr, June 21, 2002 PDR at 33, 37. Further, as the second state application under article 11.07 was dismissed as successive, Smith's claims therein were not adjudicated on the merits. See generally Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999) (noting that under Texas writ jurisprudence, it is the denial of relief rather than dismissal that constitutes adjudication on the merits). Thus, resolution of the procedural-default issue involves a comparison of the grounds asserted in the § 2254 petition with the claims asserted by Smith in his first state writ application. His eighth and final claim in that proceeding was that his "right to due process and a fair and impartial trial [was violated] by the state's failure to give proper notice to introduce evidence of other crimes," and that his "14th Amendment Due Process Clause was violated and his 6th Amendment right to a fair and impartial trial [was violated] by the State's failure to give notice of its intent to introduce evidence of other crimes wrongs and acts that the petitioner may have committed [sic]." Ex parte Smith, No. 55,259-01 at 11, 16, 47-52. The factual recitation in support of this claim, however, related only to evidence of testimony by Smith's natural daughter about an event when Smith allegedly pulled a gun on his then wife. This appears to be virtually the same claim raised in the instant federal petition as ground four, and thus such ground is exhausted. Otherwise, Smith did not raise in the state application the specific facts and allegations about the extraneous-offense evidence of alleged oral sex by Smith with the victim and her mother, made the basis of many of the extraneous-offense claims in this case.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Smith's Petition for Writ of Habeas Corpus be, and is hereby, DENIED.