Opinion
No. 3:00-CV-310-R
March 12, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner, a state prison inmate, has filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PROCEDURAL HISTORY
On March 31, 1997, Petitioner was found guilty of unlawful possession with intent to deliver a controlled substance, to-wit cocaine, in the 204th District Court of Dallas County, Texas. (State Transcript, p. 86). The jury assessed punishment of twenty-five years imprisonment. Id. On December 7, 1998, the Texas Fifth Court of Appeals affirmed Petitioner's conviction. Sorto v. State, No. 05-97-00701-CR. Petitioner filed a petition for discretionary review, which the Texas Court of Criminal Appeals denied on April 21, 1999.
On February 10, 2000, Petitioner filed a state petition for writ of habeas corpus. Ex parte Sorto, Application No. 45,008-01. On April 12, 2000, the Texas Court of Criminal Appeals denied the petition without written order on the findings of the trial court. Id. at cover.
On February 10, 2000, Petitioner filed this federal petition for habeas relief. On May 15, 2000, Petitioner filed an amended petition. Petitioner alleges: (1) the evidence is legally insufficient to support his conviction; (2) the evidence is factually insufficient to support his conviction; (3) Article 16.01 of the Texas Code of Criminal Procedure was violated; and (4) he received ineffective assistance of counsel.
III. STANDARD OF REVIEW
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, 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) (West 1997).
The Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(l). 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] 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, 120 S.Ct. 1495, 1523 (2000). Under the "unreasonable application" language, a writ may issue "if 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." Williams, 120 S.Ct. at 1523. Factual findings are presumed to be correct, see 28 U.S.C. § 2254 (e)(l), and the Court will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id.
This amendment applies to all federal habeas corpus petitions which were filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997). The habeas corpus petition in this case was filed March February 10, 2000. Accordingly, the petition is subject to review under the AEDPA's amendments.
IV. DISCUSSION
A. Sufficiency of the Evidence
In two of his claims, Petitioner contends the evidence was insufficient to support the conviction. The United States Supreme Court has articulated the standard for assessing the sufficiency of the evidence to support a conviction. The evidence is sufficient if, 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 (1979). Accordingly, federal habeas corpus relief may be granted only if the state court's analysis of Petitioner's sufficiency of the evidence claims are clearly contrary to or involved an unreasonable application of Jackson, even if state law would require a higher standard of proof. Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir. 1990).
Petitioner challenges the legal and factual sufficiency of his conviction. United States Supreme Court precedent does not provide a separate standard of review for factual sufficiency of the evidence.
To prove unlawful possession of a controlled substance, the State must prove the accused (1) exercised care, control and management over the contraband, and (2) knew the matter possessed was contraband. Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas, 1994, pet. ref'd); Fields v. State, 932 S.W.2d 97, 103 (Tex.App.-Tyler 1996, pet. ref d). To show possession of cocaine with intent to deliver, the State must prove the accused knowingly or intentionally possessed cocaine with the intent to deliver it. See Tex. Health Safety Code Ann. §§ 481.1 02(3)(D), 481.112(a) (Vernon Supp. 1998). The State need not prove the accused had exclusive possession of the controlled substance in question. See Hughes v. State, 612 S.W.2d 581, 582 (Tex.Crim.App. 1981). However, where a defendant is not in exclusive possession of the premises where the contraband is found, the State must show additional independent facts and circumstances which affirmatively link the defendant to the contraband. Id.
At trial, Officer Phillip Barker testified that on or about April 15, 1996, he received a call from an undercover officer regarding undercover narcotics surveillance. Officer Barker was informed that a white truck carrying two occupants was traveling in the area and that the occupants were carrying cocaine in a vanilla wafer box. (Statement of Facts, p. 7-8). Officer Barker located a truck matching the description and began to follow it in his marked patrol car. Id at 9. The truck turned into a Jack-in-the-Box restaurant and went through the drive-through lane, but did not stop to make an order. Id. After the truck left the Jack-in-the-Box restaurant parking lot, Officer Barker pulled the car over. Id at 12. Officer Barker testified that Petitioner was the driver of the truck. Id. at 13. Petitioner gave consent, and signed a consent form, for the truck to be searched. Id. at 14. Officer Barker testified that Petitioner appeared nervous during the stop and that he kept looking back at the truck. Id. at 20-21. Officer Barker testified that when he opened the vehicle door to search the truck he saw a vanilla wafer box sticking out from underneath the bench seat. Id. at 17. Officer Barker testified that the box contained cocaine. Id. The State introduced into evidence a lab report showing that the substance contained in the vanilla wafer box consisted of cocaine. (Exhibit 3B).
The State also called Detective Ed Matis at trial. Detective Matis testified he had information that a large narcotics transaction was going to occur on the night of April 15, 1996. Id. at 49. Officer Matis had a description of the truck as a white Ford pickup with a gray primer spot on the back, which matched the description of Petitioner's truck. Id. at 50. Officer Matis was present when Officer Barker stopped Petitioner's vehicle, and he confirmed that cocaine was found in Petitioner's vehicle. Id. at 51.
The State appellate court noted the following evidence supported the conviction: (1) Petitioner co-owned and was driving the truck in which the contraband was found; (2) Petitioner's proximity and access to the contraband in the truck; (3) police found the contraband in an enclosed place; (4) Petitioner pulled into a drive-through fast food restaurant when he realized Officer Barker was following him; and (5) when Officer Barker had Petitioner get out of the truck, Petitioner appeared nervous and kept looking back at the passenger's side of the truck. The appellate court also found that the trial judge's determination was not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. A review of the record in this case shows the evidence is sufficient to support the conviction. The appellate court did not apply the Jackson standard unreasonably to the facts of Petitioner's case. Accordingly, Petitioner has not shown that he is entitled to federal habeas corpus relief on grounds of insufficiency of the evidence.
B. Examining Trial
Petitioner argues his indictment was void because he did not receive an examining trial as required by article 16.01 of the Texas Code of Criminal Procedure. An indictment is not void, however, where an applicant was not provided an examining trial. See Morgan v. State, 816 S.W.2d 98, 100 (Tex.App.-Waco 1991, pet. ref d). Further, an error in the application of state law does not provide grounds for federal habeas relief. Pemberton v. Collins, 991 F.2d 1218, 1224 (5th Cir. 1993). A state prisoner seeking federal habeas review must assert a violation of a federal constitutional right. Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir. 1994). Petitioner's claim does not raise a federal right and should be denied.
C. Ineffective Assistance of Counsel
Petitioner argues he was denied the effective assistance of counsel because his counsel did not challenge the trial court's jurisdiction when Petitioner was denied an examining trial. To prevail on an ineffective assistance of counsel claim, a petitioner must satisfy the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must show that his counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland, 466 U.S. at 694. To determine whether counsel's performance is constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696.
As discussed above, an indictment is not defective because an applicant is not accorded an examining trial. Morgan, 816 S.W.2d at 100. Further, an indictment terminates any right to an examining trial. See Eubanks v. State, 635 S.W.2d 568, 572 (Tex.App. — Houst. 1982). In this case, Petitioner was appointed counsel after he was indicted. (Ex parte Sorto, Application No. 45,008-01, p. 20). Once Petitioner was indicted, there was no possibility of an examining trial. Therefore, any motion by counsel to quash the indictment would have been frivolous. The state court therefore found that Petitioner was not denied his right to effective counsel. Id. at 17-18. This Court must accept that finding unless it was based on an unreasonable determination of the facts in light of the evidence presented. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Petitioner has failed to meet this heavy burden. This ground for relief is without merit and should be denied.
Petitioner has failed to show the State court's decision was an unreasonable application of federal law or was an unreasonable determination of the facts in this case. Accordingly, the petition for writ of habeas corpus should be denied.
RECOMMENDATION:
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2254 be denied with prejudice for failure to make a substantial showing of the denial of a federal right.