Opinion
No. 3:02-CV-0784-G.
August 19, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
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 Elby Ray Sykes, Jr. is an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division. Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. Factual and Procedural History : On July 2, 1996, the body of Kimberly Edmonds was found in a ditch in a wooded area. (III Stmt. of Facts at 24-30.) Edmonds had multiple stab wounds to the head and neck area and blunt-force injuries to her head and face. ( Id. at 90-102.) Her family told the police that she had last been seen with her boyfriend, Sykes. ( Id. at 178-82.) Sykes gave the police consent to a search of his truck, during which the police discovered blood. Upon questioning, police consent to a search of his truck, during which the police discovered blood. Upon questioning, Sykes gave two written statements to the police in which he admitted killing Edmonds by hitting her in the head, disposing of her body in a wooded area, and washing out his truck after the murder to try to get rid of the blood in it. (V Stmt. of Facts at State Exs. 49-50.) Sykes was subsequently indicted for murder. (Tr. at 3.) At trial, Sykes denied killing Edmonds. (IV Stmt. of Facts at 463.) He admitted giving consent to the search of his truck but denied signing the two statements, which he claimed were "pure fantasy." ( Id. at 450-51, 462, 485-87.) The jury found Sykes guilty of murder and assessed punishment at life confinement. (Tr. at 70.)
The Fifth Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Sykes's petition for discretionary review. Sykes v. State, No. 5-97-229-CR (Tex.App.-Dallas Oct. 7, 1999, pet. ref'd) (not designated for publication). Sykes filed a state application for habeas corpus relief, challenging his conviction, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Sykes, No. 51,750-01 (Tex.Crim.App. Apr. 3, 2002) (not designated for publication). Along with his state application, Sykes filed a motion for DNA testing, which is still pending in the trial court. (State Habeas R. at 2, 23.) Sykes filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on April 17, 2002.
The Dallas County District Attorney's Office and the trial court's Court Coordinator have verified that the motion is still pending.
D. Issues : Sykes argues that (1) he is actually innocent; (2) the evidence is legally insufficient to support his conviction; (3) minority jury veniremembers were unconstitutionally stricken by the State; (4) the confessions were obtained in violation of Miranda and were introduced at trial based on fraudulent evidence; and (5) he was denied a DNA test and an expert on the DNA issue.
E. Exhaustion : Dretke argues that Sykes's claim regarding DNA testing is not exhausted, but does not move for dismissal for failure to exhaust under 28 U.S.C. § 2254(b)(3). Dretke concedes that Sykes's remaining allegations have been properly exhausted but contends that his second claim regarding sufficiency of the evidence is procedurally barred from federal habeas review.
II. PROCEDURAL BAR
Respondent asserts that petitioner's insufficiency-of-the-evidence claim is procedurally barred. ( See Answer at 6-7.) 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). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. See id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
Respondent urges the Court to find petitioner's sufficiency-of-the-evidence claim procedurally barred because such a claim is not cognizable on state habeas review. ( See Answer at 6-7.) Under Texas law, a defendant cannot challenge the sufficiency of the evidence in a state application for writ of habeas corpus. Ex parte McClain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). The failure to raise such a challenge on direct appeal constitutes "a procedural default under state law." Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994). The procedural default doctrine provides an adequate reason to deny federal claims based upon sufficiency of the evidence, when the state habeas court has relied upon the procedural default and the Texas Court of Criminal Appeals denied the state petition without stating its reasons. See West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996). However, "the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: `[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.'" Harris v. Reed, 489 U.S. 255, 261-62 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)).
In this instance, the Texas Court of Criminal Appeals denied the state petition with specific reference to the findings of the state trial court. See Ex parte Sykes, No. 51,750-01, slip op. at 1 (Tex.Crim.App. Apr. 3, 2002) (not designated for publication). With respect to the insufficiency-of-the-evidence claim, the trial court stated: "The Court finds that the evidence was sufficient to support the conviction and that Appellant [sic] may not challenge the sufficiency of the evidence by way of the post-conviction Writ of Habeas Corpus process." (State Habeas R. Supp. at 4.) Thus, it is unclear whether the state court actually relied on the procedural bar as an independent basis for its disposition of the case.
Courts resolve ambiguity in accordance with the "plain statement" rule espoused in Michigan v. Long, 463 U.S. 1032 (1983). See Harris, 489 U.S. at 262. "Under Long, if it fairly appears that the state court rested its decision primarily on federal law, this Court may reach the federal question on review unless the state court's opinion contains a plain statement that [its] decision rests upon adequate and independent state grounds." Id. at 261 (quoting Long, 463 U.S. at 1042, internal quotation marks omitted). In other words, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Id. at 263 (citations and internal quotation marks omitted). This "plain statement" rule "achieves the important objective of permitting the federal court rapidly to identify whether federal issues are properly presented before it." Id. at 265. State courts, moreover,
need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.Id. at 264 n. 10. When the state court appears to have considered the merits of a claim and does not explicitly rely on a procedural bar to resolve such claim, there is no procedural default. See Dowthitt v. Johnson, 230 F.3d 733, 757 n. 36 (5th Cir. 2000).
Applying the "plain statement" rule in this case, the Court finds that the last Texas state court to have rendered a "reasoned opinion" did not "clearly and expressly" rely on procedural default as a ground for rejecting any aspect of petitioner's claim of insufficiency of the evidence. The court first stated that the evidence "was sufficient to support" petitioner's conviction. (State Habeas R. Supp. at 4.) This statement clearly goes to the merits of the insufficiency claim. The court further stated that petitioner "may not challenge the sufficiency of the evidence by way of the post-conviction Writ of Habeas Corpus process." ( Id.) While this statement implies a procedural bar, the "statement falls short of an explicit reliance on a state-law ground":
While it perhaps could be argued that [the second] statement would have sufficed had the state court never reached the federal claim, the state court clearly . . . reject[ed] the federal claim on the merits. As a result, the reference to state law in the state court's opinion is insufficient to demonstrate clearly whether the court intended to invoke waiver as an alternative ground.Harris, 489 U.S. at 266 n. 13. "The state must `clearly and expressly' rely on the adequate and independent state ground" before the federal courts are prohibited from considering the claim due to procedural bar. Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). In this instance, the state court did not clearly and expressly rely upon an adequate and independent state ground to resolve the insufficiency claim. Under the circumstances of this case, the claim is not procedurally barred from federal habeas review. See Bennett v. Whitley, 41 F.3d 1581, 1582-83 (5th Cir. 1994).
The Court also notes that the trial court specifically recommended that petitioner's state habeas application be "denied" because it is "totally without merit." ( See State Habeas R. Supp. at 5.) Under Texas law, a "denial" constitutes an adjudication on the merits, rather than a procedural dismissal. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits).
Because the procedural default doctrine does not bar federal habeas relief on petitioner's insufficiency-of-the-evidence claim, the Court proceeds to the merits.
III. APPLICABLE LAW
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment 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 United States Supreme Court 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). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it in an objectively unreasonable manner to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
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 this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application such denial is an adjudication on the merits that is entitled to this presumption. See Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
IV. ACTUAL INNOCENCE
Sykes argues that he is actually innocent: "Here, Mr. Sykes believes that he is innocent and will be able to prove his innocence with DNA testing. At present, he does not have new evidence exonerating him." (Federal Pet. at 21.)
With respect to whether a petitioner may obtain federal habeas relief on a claim of actual innocence, the Fifth Circuit Court of Appeals has recognized Townsend v. Sain, 372 U.S. 293 (1963) as the unequivocal position of the United States Supreme Court on the matter. See Boyd v. Puckett, 905 F.2d 895, 896 (5th Cir. 1990); Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir. 1983) (per curiam). In Townsend, the Court held that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." 372 U.S. at 317, overruled in part on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). In the Fifth Circuit, actual innocence is not an independent basis for federal habeas relief. E.g., Graham v. Johnson, 168 F.3d 762, 788 (5th Cir. 1999); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir. 1998); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994). Petitioner thus cannot succeed on the actual innocence claim standing alone.
Petitioner, moreover, has not established that he is actually innocent. The Supreme Court has held that to show actual innocence, a petitioner must establish:
that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt . . . in light of all of the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after trial.Schlup v. Delo, 513 U.S. 298, 321 (1995). Petitioner has not met this standard. A jury found him guilty on the evidence presented against him. Furthermore, he concedes that he does not have any new evidence which exonerates him. ( See Federal Pet. at 21.)
Because actual innocence based upon new evidence relevant to the guilt of a state prisoner is not cognizable on federal habeas corpus, and petitioner has not shown himself to be actually innocent in any event, this claim entitles him to no federal habeas relief.
V. SUFFICIENCY OF THE EVIDENCE
Petitioner next claims that there is legally insufficient evidence to support his conviction. ( See Federal Pet. at 23.) He submits that "[h]is ability to succeed on this claim depends upon two factors." ( Id.) He asserts that "he needs DNA testing to show that there is no match of tissue . . . [and] he needs to undermine the confessions which he signed . . . [b]oth require the Court to authorize DNA testing, because only exonerating DNA testing is persuasive enough to overcome the confessions." ( Id.)
"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 have extremely limited habeas review of claims based on the sufficiency of the evidence, and the standard for reviewing such claims is supplied by Jackson v. Virginia, 443 U.S. 307 (1979). When reviewing such claims against the underlying conviction, 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. 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. Further, 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). "Determining the weight and credibility of the evidence is within the sole province of the jury." United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992). 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). 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 Jackson standard applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998).
Federal courts apply the Jackson "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 case law and statutes bind the courts in their determination of the elements needed to be proven. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). In reviewing a challenge to the sufficiency of the evidence supporting the underlying conviction, " Jackson requires . . . that the review occur `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n. 16). The federal courts must "independently analyze the governing statute, the indictment, and the jury charge to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry." Id. at 260. When considering a claim of insufficient evidence to support the underlying conviction on federal habeas review, this Court should only determine "whether the evidence was constitutionally sufficient to convict [petitioner] of the crime charged." Id. at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)).
In this case, the State charged petitioner with murder. (Tr. at 3.) It specifically charged that, on or about July 2, 1996, in Dallas County, Texas, petitioner
unlawfully, then and there knowingly and intentionally cause the death of [the complainant], an individual, by stabbing and bu cutting the neck and head of the said [complainant] with a deadly weapon, to-wit: a knife and sharp-edged instrument and object unknown to the grand jury and by causing blunt force injury to the head of the said [complainant].
( Id.) The trial court, furthermore, read the following charge to the jury: "Our law provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual." ( Id. at 44.) The jury charge is consistent with Texas law that a person commits murder when he "intentionally or knowingly causes the death of an individual." See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003).
In this instance, petitioner concedes that he cannot succeed on his insufficiency claim without additional evidence such as DNA testing. ( See Federal Pet. at 23.) However, Jackson provides this Court only extremely limited habeas review of claims based on the sufficiency of the evidence. The Court must view the evidence and any required credibility determinations in a light most favorable to the prosecution. That petitioner needs additional evidence to succeed on his insufficiency claim necessarily means that the claim fails without the additional evidence. Because the scope of review for claims of insufficiency of the evidence does not entail consideration of evidence not presented to the trier of fact this claim necessarily fails due to petitioner's concession that he needs additional evidence to succeed on this claim.
Furthermore, the State introduced two voluntary statements in which petitioner confessed to causing the death of Ms. Edmonds. ( See V Stmt. of Facts at State Exs. 49-50.) Although petitioner testified that he did not sign those confessions, the jury made its credibility determination and found the State's witnesses more credible than petitioner. Viewed in a light most favorable to the prosecution, the Court finds that the record supports the jury verdict. From the evidence, a rationale jury could conclude that petitioner intentionally or knowingly caused the complainant's death. A rationale jury could conclude that petitioner used a deadly weapon. A rational trier of fact could have found the essential elements of the murder offense beyond a reasonable doubt. The Court finds that the evidence was constitutionally sufficient to convict petitioner for murder. See Bledsue, 188 F.3d at 262.
Petitioner has failed to carry the heavy burden imposed by 28 U.S.C. § 2254(d), as interpreted by Williams v. Taylor, 529 U.S. 362, 412-13 (2000), to show that the state court determination of this issue was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding or that such 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. Accordingly, petitioner is entitled to no federal habeas relief on his claim that the evidence is legally insufficient to support his conviction.
VI. JURY SELECTION
Sykes alleges that two black veniremembers were stricken solely based on their race and not on the pretext explanation given by the State. (Federal Pet. at 23-25.) A state violates a defendant's rights under the Equal Protection Clause if it strikes potential jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Under Batson, a defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Id. at 96-97. If that showing is made, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. Id. at 97-98. In light of the parties' submissions, the trial court must then determine whether the opponent of the strike has proved purposeful racial discrimination. Id. at 98. The critical question at step three is the persuasiveness of the prosecutor's justification for his peremptory strikes. Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003). Implausible or fantastic justifications are usually pretexts for purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam). The Batson determination is primarily based on the trial court's evaluation of the credibility of counsel's explanations. United States v. Wallace, 32 F.3d 921, 925 (5th Cir. 1994).In this case, Sykes argued after the jury had been selected that the State had used its peremptory challenges to strike all blacks from the jury. (II Stmt. of Facts at 148.) The State responded that it struck two of the four black veniremembers, Betty Longum and Billy Berry, because they were chewing gum during voir dire. ( Id. at 150, 153-55.) The State elaborated that this behavior indicated that the veniremembers had a "lackadaisical attitude for court procedures for the proper respect to be shown and whether they cared about something or not" and that "it would affect the ability for those jurors to care what kind of evidence was presented when it was being presented." ( Id. at 155-56.) The trial court found that the State did not exercise it peremptory strikes in a racially discriminatory manner. ( Id. at 156.) On appeal, the court of appeals held that the trial court's ruling was not clearly erroneous. Sykes, No. 5-97-229-CR, slip op. at 7.
Sykes challenges only these two peremptory strikes in this action. (Federal Pet. at 24.)
Sykes has provided no proof to support his contention that the trial court should have disbelieved the State's race-neutral explanations for its use of peremptory strikes on the two veniremembers. There is no evidence or case law to suggest that the state courts' holdings were unreasonable applications of federal law or an unreasonable determination of the facts. E.g., United States v. Melton, 883 F.2d 336, 338 (5th Cir. 1989); Webb v. State, 840 S.W.2d 543, 545-46 (Tex.App.-Dallas 1992, no pet.). Accordingly, this claim entitles Sykes to no habeas relief.
VII. CONFESSIONS
Sykes argues that the two confessions were obtained in violation of Miranda and were introduced at trial based on fraudulent evidence. Specifically, Sykes argues that his signatures on the confessions were forged. Habeas counsel states that he "does not have personal knowledge of these claims or evidence to support them, but reports Mr. Sykes'[s] claims and requests a hearing so that all may testify" and further requests a handwriting analysis. (Federal Pet. at 26-27.) This admittedly conclusory and unsupported allegation is insufficient to raise a constitutional issue and cannot result in habeas corpus relief. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam). Further, Sykes's request for discovery is not justified based on his speculative and conclusory factual allegations, which merely raise the specter of an impermissible fishing expedition. Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994) (per curiam).
VIII. DNA TESTING
Sykes claims that the State violated his rights to due process and equal protection when it failed to order DNA testing on the evidence used against him and denied Sykes the appointment of a DNA expert under state law. (Federal Pet. at 28.) Although Sykes includes a bare allegation that his federal constitutional rights were violated, this claim solely raises a question regarding whether Sykes is entitled to DNA testing under state law and is not cognizable on federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Molo v. Johnson, 207 F.3d 773, 775-76 n. 9 (5th Cir. 2000) (per curiam); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983); see also 28 U.S.C. § 2254(a) (habeas relief is available to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treatises of the United States"). Sykes's right to post-conviction DNA testing arises solely under Texas law. See TEX. CODE CRIM.PROC.ANN. art. 64.01(a) (Vernon Supp. 2004) (stating motion for biological testing is to be filed in the "convicting court"); King v. Cockrell, No. 3:02-CV-2197, 2002 WL 31906378, at *2 n. 3 (N.D. Tex. Dec. 27, 2002) (holding complaint regarding post-conviction DNA testing is solely an issue of state law and not cognizable on federal habeas corpus review). Further, any claim that the denial of DNA testing violated his constitutional rights is premature because the request is still pending in the state courts.IX. SUMMARY
Sykes is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Sykes was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
X. EVIDENTIARY HEARING
Upon review of the pleadings filed and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.XI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the request for habeas corpus relief brought under 28 U.S.C. § 2254.