Opinion
Civil Action No. 4:02-CV-877-A
March 14, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636 (b), as 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 are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Nelson Karl Swavely, TDCJ-ID #931269, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Terrell Unit in Rosharon, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In August 1998, Swavely was charged by indictment in state court with possession of amphetamine of less than one gram in Case No. 0698931. (Tr. Ct. Clerk's R. at 6.) In August 1999, the case was reindicted as Case No. 0741408, and the trial court dismissed Case No. 0698931 on the state's motion. ( Id. at 3.) The reindictment alleged, in count one, that on the date in question Swavely possessed methamphetamine of four grams or more but less than two hundred grams with intent to deliver, and, in count two, that he possessed amphetamine of four grams or more but less than two hundred grams with intent to deliver. ( Id.) The reindictment also included enhancement and habitual offender allegations. ( Id.) Swavely was served with the reindictment on June 7, 2000, the day of trial. The State abandoned count two and proceeded to trial on count one.
Evidence adduced at trial shows that the police obtained a search warrant for Swavely's residence based on information from a confidential informant that drug activity was being conducted on the premises. (7Rep. R. at State's Exs. 1, 2.) The police found used syringes and baggies with residue of a powder containing methamphetamine and amphetamine in a "drop hole" in the wall, a glass vial containing a mixture of methamphetamine and amphetamine in liquid form, and other drug paraphernalia. (4Rep. R. at 25-31, 71-72, 80-84; 7 Rep. R. at State's Ex. 16.) During the search, Swavely arrived at the location, but fled after being confronted by police. (4Rep. R. at 96-04; 5Rep. R. at 2-12) A pursuit ensued, and Swavely was eventually stopped and arrested. (5Rep. R. at 33-42.) The police discovered a so-called "drop hole" in Swavely's pickup, but no contraband. ( Id. at 43-50.)
Based on the evidence, the jury convicted Swavely of the lesser included offense of possession of methamphetamine of four grams but less than two hundred grams. ( Id. at 29.) The trial court subsequently assessed his punishment at 35 years' confinement. ( Id. at 34.) Swavely appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on July 26, 2001. Swavely v. State, No. 2-00-227-CR (Tex.App.-Fort Worth July 26, 2001) (not designated for publication). On December 19, 2001, the Texas Court of Criminal Appeals refused Swavely's petition for discretionary review. Swavely v. State, No. 1546-01 (Tex.Crim.App. Dec. 19, 2001) (not designated for publication).
Swavely filed a state application for writ of habeas corpus challenging his conviction and raising the grounds presented herein, which the Texas Court of Criminal Appeals denied without written order on September 11, 2002. Ex parte Swavely, No. 52, 927-01, at cover. Swavely filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 18, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In four grounds, Swavely raises the following claims:
1. He was denied his right to due process because the state trial court denied his motion for continuance on the day of trial.
2. He received ineffective assistance of trial and appellate counsel.
3. Illegally obtained evidence from the vehicle stop was used in front of the jury.
4. The evidence was insufficient to support his conviction. (Federal Pet. at 7-8.)
E. RULE 5 STATEMENT
Cockrell believes that Swavely has sufficiently exhausted available state remedies on the claims presented as required by 28 U.S.C. § 2254 (b)(1)(A). (Resp't Answer at 5.) Thus, she does not move for dismissal on exhaustion grounds.F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254 (d), 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 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 Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. MOTION FOR CONTINUANCE
In his first ground, in addition to his ineffective assistance claims, Swavely contends that he was denied due process because the trial court failed to grant him a continuance to allow him ten days to prepare for trial on the reindictment. (Pet. at 7; Pet'r Mem. in Support; Pet'r Answer at 1-4.) Swavely cites no authority demonstrating that either the Texas or United States Constitutions require ten days between indictment and trial, but he does cite to articles 27.11 and 27.12 of the Texas Code of Criminal Procedure in support of his argument. See TEX. CODE CRIM. PROC. ANN. arts. 27.11, 27.12 (Vernon 1989).
Article 27.11 provides:
In all cases the defendant shall be allowed ten entire days, exclusive of the all fractions of a day after his arrest, and during the term of the court, to file written pleadings.
Article 27.12 provides:
In cases where the defendant is entitled to be served with a copy of the indictment, he shall be allowed the ten days time mentioned in the preceding Article to file written pleadings after such service.
The decision to grant or deny a continuance is normally within the discretion of the trial judge. See Thompson v. Mississippi, 914 F.2d 736, 739 (5th Cir. 1990). Relief by habeas corpus will lie only for a clear abuse of discretion, i.e., the decision was so arbitrary and fundamentally unfair that it violates constitutional principles of due process, and a showing of prejudice. Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981). In making this determination, the answer must be found in the circumstances present in the particular case. Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
The state record in the instant case reflects that the new indictment in Case No. 0741408 was filed in August 1999, more than nine months before trial. (Tr. Ct. Clerk's R. at 3.) The original indictment in Case No. 0698951 was dismissed in October 1999, and Swavely remained on his original bond, which was transferred to the new case. ( Id. at 6, 11.)
First, as a matter of state law, it does not appear that articles 27.11 and 27.12 apply if the defendant is not incarcerated at the time of the reindictment and the reindictment is filed more than ten days before trial begins. See Trevino v. Texas, 900 S.W.2d 815, 817 (Tex.App. — Corpus Christi 1995, no pet.); Parra Gonzales v. Texas, 756 S.W.2d 413, 414-15 (Tex.App.-El Paso 1988, pet. ref d), overruled on other grounds by Mock v. State, 848 S.W.2d 215, 225 (Tex.App.-El Paso 1992. pet. ref d); Johnson v. Texas, 702 S.W.2d 691, 691 (Tex.App.-Houston 14th Dist.] 1985, pet. ref d). Second, the purpose of the 10-day requirement is essentially to eliminate surprise and afford the defendant time to examine the formal accusation and to prepare and file any necessary pleadings pertaining to his case. See Oliver v. State, 646 S.W.2d 242, 254 (Tex.Crim.App. 1983). The reindictment against Swavely was based on the same facts and events as the original indictment. (2Rep. R. at 5.) Further, Swavely's trial counsel was retained and represented him throughout the trial court proceedings in both cases and had ample opportunity to review documents filed in each case or obtain information regarding the factual and legal basis of the charges against Swavely through other available means, including pretrial discovery. See Dowell v. C.M. Lensing, 805 F. Supp. 1335, 1343 (M.D. La. 1992). Moreover, Swavely neither alleges nor demonstrates that there is a reasonable probability that the granting of a continuance would have permitted him to adduce evidence at trial that would have altered the verdict. See Kirkpatrick v. Blackburn, 777 F.2d 272, 281 (5th Cir. 1985). Under these circumstances, the trial court's decision to deny Swavely's motion for continuance did not amount to an abuse of discretion.
2. SEARCH AND SEIZURE
In Swavely's third ground, he contends extraneous evidence of flight and the illegal search of his vehicle was used "in front of the jury," in violation of his Fourth Amendment rights. (Pet. at 7; Pet'r Mem. in Support.) However, where, as here, a state has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search and seizure. Stone v. Powell, 428 U.S. 465, 489-95 (1976). Swavely was given a full and fair hearing on his motion to suppress in the state trial court, the trial court considered Swavely's objection to admission of the evidence during trial, and Swavely raised his claim in his state writ application. (3Rep. R. at 8-71; 5Rep. R. at 39; State Habeas R36-48.) In each instance, the state courts considered and rejected his argument. Thus, Swavely received a full and fair chance to litigate his claim in the state courts, and Stone bars relitigation of the issue here.
3. SUFFICIENCY OF THE EVIDENCE
In his third ground, Swavely argues that the evidence is insufficient to support his conviction because there was no evidence connecting him to the contraband found in the residence and because "multiple parties" had access to the premises. (Pet. at 7; Pet'r Mem. in Support; Pet'r Answer at 6.) Swavely's sufficiency-of-the-evidence claim was raised and addressed by the Second Court of Appeals on direct appeal and by the Texas Court of Criminal Appeals in Swavely's state writ application. In both instances, the state court rejected the claim. Having conducted an independent inquiry as to sufficiency under the Jackson v. Virginia standard, the sate disposition of the claim appears consistent with Jackson.
A claim that evidence is factually insufficient is not cognizable on federal habeas corpus review. Osteen v. Cockrell, No. 3:00-CV-2634-L, 2002 WL 356568, at *7 (N.D. Tex. Feb. 28, 2002); Fox v. Johnson, No. 4:00-CV-291-Y, 2001 WL 432247, at *2 (N.D. Tex. Apr. 20, 2001), adopted, 2001 WL 540215 (N.D. Tex. May 17, 2001). Thus, to the extent we address Swavely's claim, we do so under the Jackson v. Virginia, 443 U.S. 307 (1979), standard.
A criminal defendant has a federal due process right to be convicted only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal courts, nevertheless, have extremely limited habeas review of claims based on the sufficiency of the evidence. When reviewing such claims, 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, 443 U.S. at 319. Courts must apply this standard with explicit reference to the substantive elements of the criminal offense as defined by state law. Id. at 324 n. 16. When faced with a record of historical facts that supports conflicting inferences courts must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Id. at 326. Furthermore, under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). The trier of fact is solely responsible for determining the weight and credibility of the evidence. United States v. Ramirez, 233 F.3d 318, 320 (5th Cir. 2000). Courts view any required credibility determinations in the light most favorable to the guilty verdict. United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000), cert. denied, 532 U.S. 959 (2001). They do not second-guess the weight or credibility given the evidence. United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).
The standard of review enunciated in Jackson whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998). Federal courts apply the standard looking to the state's substantive law, giving great weight to the state court's determination. Miller v. Johnson, 200 F.3d 274, 286 (5th Cir. 2000). State statutes and case law bind the courts in their determination of the elements of an offense. Foy, 959 F.2d at 1313; Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999). On federal habeas review this court should only determine whether the evidence was constitutionally sufficient to convict the petitioner of the crime charged. Bledsue, 188 F.3d at 262.
Under Texas law, "possession" is defined as "actual care, custody, control, or management" of the contraband. TEX. HEALTH SAFETY CODE ANN. § 481.002 (38) (Vernon Supp. 2003). As noted by the Second Court of Appeals, an "affirmative link" analysis is used to review the evidence of the accused's knowledge and control of the contraband. Various factors to consider include: (1) the accused's presence when the search warrant was executed; (2) whether the contraband was in plain view; (3) the accused's proximity to and the accessibility of the narcotics; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether the contraband had an odor; (10) whether other contraband or drug paraphernalia was present; (11) whether the accused owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the accused was found with a large amount of cash; (14) whether the conduct of the accused indicated a consciousness of guilt. See Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim.App. 1984); Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. [Panel Op.] 1981); Mohmed v. State, 977 S.W.2d 624, 627 (Tex.App.-Fort Worth 1998, pet. ref d). In its affirmative link analysis, the Second Court of Appeals noted:
Here, the evidence shows that [Swavely] lived at 704 North East Street. The water bill/account for the address was in [Swavely's] name, and [Swavely's] driver's license showed it to be his address. [Swavely] does not dispute that he lives at 704 North East Street. There was no evidence that anyone else was in possession of the house except for a tax bill in the name of "Peggy Lloyd," who was [Swavely's] landlord and neighbor. The police searched the house, an enclosed area, and found methamphetamine and other drug paraphernalia. The methamphetamine was in the living room. It was not tucked in the holes in the wall with the other paraphernalia. It was found in a glass bottle that was inside a tin can in the living room. Furthermore, [Swavely] fled when he realized the police were waiting for him at his house. Flight from the police indicates [Swavely's] consciousness of guilt. Based on the facts and circumstances, we hold that the evidence in this case was sufficient to "link" [Swavely] to the contraband and to permit the jury to reasonable infer and conclude that [Swavely] was in possession of the methamphetamine. (State Habeas R. at 66-67 (citations omitted).)
Viewed in the light most favorable to the prosecution, the evidence cited by the state court was such that any rational trier of fact could have found beyond a reasonable doubt that Swavely did exercise care, custody, control, or management over the contraband in question, notwithstanding the fact that he was not present when the search warrant was executed and others had access to the residence. Thus, Swavely's sufficiency claim fails because the disposition of the state courts on the issue appears both consistent with Jackson and based upon a reasonable determination of the facts in light of the evidence presented.
4. INEFFECTIVE ASSISTANCE OF COUNSEL
In Swavely's first and fourth grounds, he contends he received ineffective assistance of trial and appellate counsel. (Pet. at 7-8; Pet'r Mem. in Support; Pet'r Answer at 3-5.) A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688; see also Smith v. Robbins, 528 U.S. 259, 287-88 (2000) (applying Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688. A defendant must tie both prongs of this standard to particular instances of counsel's performance. Id. at 690.
A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness. Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997); Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995).
The Texas Court of Criminal Appeals considered and rejected Swavely's claims as presented in his state writ application. Ex parte Swavely, No. 52, 927-01, at cover. Thus, we review the claims to determine whether the state court's adjudication of the claims was contrary to or involved an objectively unreasonable application of clearly established federal law on the issue or based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 122 S.Ct. 1843, 1852 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 123 S.Ct. 7676 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 123 S.Ct. 625 (2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002). Further, where, as here, the state court does not make express findings of fact, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sain, 372 U.S. 293, 314 (1963); Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir. 1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973). Additionally, if the state court does not articulate the constitutional standards applied, this court may assume that the state court applied correct standards of federal law to the facts in the absence of evidence that an incorrect standard was applied. Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001).
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254 (d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir. 1981).
Applying these principles to Swavely's ineffective assistance claims, this court cannot say that he has demonstrated substandard representation on the part of counsel or that there is a reasonable probability that, but for counsel's alleged errors, the result of his trial or appeal would have been different. There was no hearing on Swavely's state writ application. Thus, the record is silent as to the extent of trial or appellate counsel's representation or the reasons for counsel's actions and/or omissions. Moreover, Swavely has not met his burden to show that he was prejudiced as a result of the alleged deficiencies.
Swavely argues that trial counsel was ineffective by failing to more thoroughly investigate and prepare for trial. Counsel has a duty to conduct a reasonable pretrial investigation into the facts of a criminal case, which might necessarily include reviewing the documents filed in the case, interviewing potential witnesses, and conducting discovery. See Strickland, 466 U.S. at 691. However, there is nothing in the instant record to reflect the nature and extent of counsel's pretrial investigation in Swavely's case. Swavely does not assert that counsel was aware of but failed to interview specific individuals, what the substance of their testimony would have been and whether it would have been favorable to the defense, or that they would have been available and willing to testify at trial. See Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001). Further, Swavely fails to show with specificity what a more thorough investigation by counsel would have revealed and how it would have aided or altered the defense strategy or the outcome of his trial. See United States v. Green, 882 F.2d 999, 1002-03 (5th Cir. 1989). Swavely does point to counsel's assertions in his motion for continuance, wherein counsel stated that he had been in trial on an unrelated case and had not had the time necessary to meet with Swavely and his witnesses or prepare for trial, and counsel's assertion on the day of trial that he was not prepared to defend against the new charges. (Tr. Ct. Clerk's R. at 15; 2Rep. R. at 4.) Swavely cannot, however, prevail on an ineffective assistance claim merely by virtue of counsel's assertions without a showing of prejudice.
Finally, Swavely argues that appellate counsel was ineffective by failing to raise error on appeal. (Pet'r Mem. in Support.) More specifically, he appears to argue that appellate counsel should have raised an issue in his appellate brief regarding an alleged improper comment by the state prosecutor on his failure to testify at trial. Appellate counsel is not, however, required to urge every possible argument urged by his client on appeal, regardless of merit. Robbins, 528 U.S. at 288; Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir. 1991). It is counsel's duty to choose among potential issues, according to his judgment as to their merits and the tactical approach taken. Jones v. Barnes, 463 U.S. 745, 749 (1983).
Further, even if counsel had raised such a claim, it would not have altered the outcome of Swavely's appeal. As a matter of Texas law, the prosecution is prohibited from commenting directly or indirectly on a defendant's silence or failure to testify at trial. See Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001); U.S. CONST. amend. V; TEX. CONST. art. I § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 1979). In examining the prosecution's comment, we must first determine if it was intended to be a comment on the defendant's failure to testify or if the comment was of such a character that the jury would naturally take it to be a comment on the defendant's failure to testify. Bustamante, 48 S.W.3d at 765; Patrick v. State, 906 S.W.2d 481, 490 (Tex.Crim.App. 1995). Indirect or implied allusions to a defendant's failure to testify do not violate the defendant's rights. Patrick, 906 S.W.2d at 490-91.
During the state's closing argument, the following exchange occurred:
[PROSECUTOR]: Let's talk about the links, the things that establish his possession of this. We just happen to get a search warrant for the same address in which he lives.
And, you know he lives there, folks, because the Defense Counsel started asking Pam Gold [the narcotics detective] questions about the landlady. Wasn't there an ongoing relationship there? Wasn't the landlady making complaints way before this about him? She's his landlady. You know he lived there. There's no argument there. To say he didn't live there is, quite frankly, disingenuous. Let's not kid around about that either.
Miraculously it is the same house he's at the same day of the search warrant. I guarantee you if Pam Gold would have gone out there and had information from a couple of days before, he would be saying, You don't have the information right up until that day.
[DEFENSE ATTORNEY]: Objection, Your Honor. I don't think it is proper for him to speculate on what this person might or might not say because he's asserted his right not to testify. He's commenting on the failure to testify and trying to put words in his mouth.
[PROSECUTOR]: I was commenting on the defense attorney —
[DEFENSE ATTORNEY]: Then he should phrase it "Defense Attorney" instead of "him."
THE COURT: Sustained.
[DEFENSE ATTORNEY]: May I have an instruction for the jury to disregard and not draw any inference from the fact that he may have alluded to the Defendant's failure to testify?
THE COURT: The jury is so instructed.
[PROSECUTOR]: I meant this guy right here. That's what he was going to say.
[DEFENSE ATTORNEY]: Objection, Your Honor. Once again, that calls for speculation, and it is improper to strike at the Defendant over the shoulders of the Defense attorney.
THE COURT: Sustained as to speculation. (5Rep. R. at 136-37.)
When viewed in context, the prosecutor's argument was directed to Swavely's trial counsel, and does not appear to be a comment, directly or indirectly, on Swavely's failure to testify. Nor is it clearly of such a character that the jury would naturally construe it to be a comment on Swavely's failure to testify. Nevertheless, the harm, if any, was cured by the court's instruction to disregard. See Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999).
5. SUMMARY
In summary, Swavely is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state court's determination that Swavely was not entitled to relief is not contrary to or involve an unreasonable application of clearly established federal law and is not based on unreasonable determinations of fact in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Swavely's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until April 4, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636 (B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 4, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.