Opinion
Civil Action No. 4:02-CV-105-Y
August 1, 2002
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 Jerry Wanzer, TDCJ-ID #855976, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ).
C. FACTUAL AND PROCEDURE HISTORY
In April 1996, Wanzer was charged in state court with aggravated sexual assault of a child. (Clk's R. at 3.) In two counts, the indictment alleged that on or about March 9, 1996, Wanzer intentionally or knowingly caused the anus of K.L., a child younger than 14 years of age, to contact his sexual organ and that he intentionally or knowingly caused the penetration of K.L.'s anus by inserting his finger in K.L.'s anus. ( Id.)
In January 1999, Wanzer's trial began. A Fort Worth police officer testified that Valerie Snell, Wanzer's girlfriend, came to the police station on the evening of March 9, 1996, and reported that she had caught Wanzer sexually assaulting her son K.L. (5Rep. R. at 64-.) Snell told the officer that Wanzer came home at about 1:30 a.m. that morning, but did not come to bed. She looked through the house for him and found him in K.L.'s room. ( Id. at 54.) K.L. was naked, face down on the floor. ( Id.) Wanzer, wearing only sweat pants, was on top of him. ( Id.)
A sexual assault nurse examiner for the CARE Team at Cook Children's Hospital testified that she saw Snell and K.L. at the hospital on March 18, 1996, and that she took K.L.'s medical history. ( Id. at 96.) K.L. told her that Wanzer "put his finger in [his] behind" and "tried to put his penis in his booty," but he "would squeeze so [Wanzer] couldn't get it in." ( Id. at 97.) He told her that it had happened three or four times. ( Id.) K.L.'s medical examination was normal, and there were no injuries to K.L.'s anus or medical findings of sexual abuse. ( Id. at 102-03.)
A Child Protective Services (CPS) investigator testified that she was assigned to the case and that she interviewed Snell, K.L., and Snell's grandmother. ( Id. at 19.) She also interviewed Wanzer in jail on April 11, 1996. ( Id. at 24-27; 6Rep. R. at 10-11.) During the interview, Wanzer told her that on the night in question he was examining K.L.'s anus to see if K.L. "had been messed with by somebody else," which he suspected, and to "find out if his butt was loose." (5Rep. R. at 26.)
Shortly after Wanzer's arrest in 1996, Snell sent an affidavit to the police and the state requesting that Wanzer not be further prosecuted for the alleged offense and that he be considered for psychiatric treatment and counseling instead. ( Id. at 118-21.) She indicated that she did not wish to testify against Wanzer, and, thereafter, she refused to cooperate with the police or the D.A.'s office regarding the case. ( Id. at 120.) The state was unable to successfully serve Snell with a subpoena to appear, and neither Snell nor K.L. testified at trial. ( Id. at 132-39.)
The jury found Wanzer not guilty of aggravated sexual assault by penal contact, but it found him guilty of aggravated sexual assault by digital penetration and assessed his punishment at 75 years' imprisonment. (Clerk's R. at 262.) Wanzer appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on March 23, 2000. Wanzer v. State, No. 2-99-008-CR (Tex.App. — Fort Worth Mar. 23, 2000, pet. ref'd) (not designated for publication). On August 30, 2000, the Texas Court of Criminal Appeals refused Wanzer's petition for discretionary review. Wanzer v. State, No. 961-00 (Tex.Crim.App. Aug. 30, 2000) (not designated for publication).
Wanzer filed a state application for writ of habeas corpus raising his speedy trial claim and the bulk of his ineffective assistance claims presented herein, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court on January 9, 2002. Ex parte Wanzer, No. 39,677-02, at cover (Tex.Crim.App. Jan. 9, 2002) (not designated for publication). Wanzer 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 February 1, 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
Wanzer raises the following claims:
1. He was denied due process because the trial court refused to dismiss the case on speedy trial grounds.
2. He was denied due process because he was denied the right to confront his accusers.
3. He was denied effective assistance of counsel at trial and on appeal.
4. He was denied due process because the evidence was both legally and factually insufficient on the element of identity.
5. He was denied due process by the trial court's admission of Snell's hearsay statements to the police officer.
6. He was denied due process because the trial court failed to quash the indictment.
7. He was denied due process by the trial court's admission of his alleged confession to the CPS investigator during custodial interrogation. (Pet. at 7-11.)
E. RULE 5 STATEMENT
Cockrell believes that Wanzer has sufficiently exhausted available state remedies with regard to the issues presented, except for two of his ineffective assistance claims, and she does not move for dismissal on this ground. (Resp't Answer at 4.)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 state court 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 particular 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. 28 U.S.C. § 2254(e)(1). To establish that habeas relief it warranted on the § 2254(d)(2) ground that the state court's decision was based on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding," a petitioner must rebut by clear and convincing evidence the § 2254(e)(1) presumption that a state court's factual findings are correct. Id.; Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002). 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 the presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Speedy Trial
In his first ground, Wanzer contends the state trial court erred by refusing to dismiss his case on speedy trial grounds. (Pet. at 7; Mem. in Support at 5-21.) Wanzer did not raise this issue on direct appeal or in his petition for discretionary review, but he did raise the claim in his state writ application. (State Habeas R. at 7.) The state habeas court, however, did not consider the merits of the claim because Wanzer could have, but did not, raise the matter on appeal. ( Id. at 187-88, 193.) In turn, the Texas Court of Criminal Appeals denied relief without written order on the findings of the trial court. Ex parte Wanzer, No. 39,677-02, at cover. Cockrell argues that Wanzer's failure to present this claim on direct appeal resulted in a procedural default of the claim barring federal habeas review. (Resp't's Answer at 6-7.)
Generally, in Texas writ jurisprudence, the writ should not be used to litigate matters which could have been raised on appeal. Ex parte Sanchez, 918 S.W.2d 526, 527 (Tex.Crim.App. 1996); Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Crim.App. 1989). Clearly, the state habeas court relied on this procedural default to deny relief on Wanzer's speedy trial claim. This state procedural rule, firmly established and regularly followed by Texas courts, is an adequate state ground to support the court's denial of habeas relief and is independent of federal law. See Coleman v. Thompson, 501 U.S. 722, 729 (1991).
Federal habeas corpus relief is unavailable in the face of an adequate and independent state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman, 501 U.S. at 750; Finley v. Johnson, 243 F.3d 215, 219-20 (5th Cir. 2001). Wanzer argues that his trial counsel, William Ray, was ineffective by failing to raise the issue on direct appeal and that counsel's error is sufficient cause to excuse the procedural default. (Pet'r Response to Resp't Answer at 2-9.)
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, infra. 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). Appellate counsel is not required to raise every conceivable argument urged by his client on appeal, regardless of merit. Robbins, 528 U.S. at 288. 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). The question is whether Wanzer has shown that appellate counsel's failure to raise the issue worked to his prejudice — i.e., that but for counsel's errors he would have prevailed on his appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir. 1991).
The performance component of Strickland need not be addressed first, and an ineffective assistance claim may be disposed of on the ground of lack of sufficient prejudice. Robbins, 528 U.S. at 286 n. 14; Strickland, 466 U.S. at 697.
The court agrees with Wanzer that in certain circumstances counsel's ineffectiveness in failing to properly preserve a claim for review in state court will suffice to excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). However, the state courts addressed the ineffective assistance issue raised by Wanzer and rejected it in light of counsel's affidavit explaining why he did not raise the matter on appeal. (State Habeas R. at 179, 181, 189-92.) Specifically, Ray stated that he did not raise a speedy trial claim because he did not feel the law would support such a claim given that the delay was due, in part, to Wanzer's own acts and due, in part, to overcrowding of the trial court's docket. ( Id. at 179.) He further noted that Wanzer was booked into the jail on a parole hold for a large percentage of the time that he was incarcerated pretrial and would not have been able to leave the jail anyway. ( Id.)
The Sixth Amendment guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. CONST. amend. VI. The criteria for assessing a speedy trial claim is set out in Barker v. Wingo, 407 U.S. 514, 530 (1972). Under Barker, a court must consider the following factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant. Id.
Wanzer was arrested on March 12, 1996, and his trial began on January 5, 1999. Cockrell appears to concede that the nearly three-year delay was "presumptively prejudicial," and it is clear from the state court records that Wanzer asserted his speedy trial rights on numerous occasions, pro se and through counsel. (Clerk's R. at 36, 96, 122, 124, 186, 189, 217, 224, 237.) See Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992). Therefore, the court must balance those factors against the remaining two factors of the Barker test.
In examining the reasons for the delay, this court must heed the Supreme's Court's warning that "pretrial delay is often both inevitable and justifiable." Doggett, 505 U.S. at 656. Here, the state court records appear to support Ray's explanation for the delay as stated in his affidavit. The records reflect that the state announced ready in April 1996. Thereafter, Wanzer moved for a competency examination, and the psychiatric evaluation was filed with the trial court in late May 1996. (Clerk's R. at 11-13.) In August 1996, the case was reassigned to Trial Court B. ( Id. at 15.) In September 1996, Wanzer filed a declaration of conflict between himself and his first court-appointed attorney, and the attorney moved to withdraw from his case. (Clerk's R. at 22-, 36.) In October 1997, the attorney's motion to withdraw was granted, and Ray was appointed. ( Id. at 5, 109.) Thereafter, Ray filed a motion for speedy trial in October 1998 and a motion to dismiss the case for failure to provide a speedy trial in December 1998. (Clerk's R. at 224, 237.) At the speedy trial hearing, court personnel testified that the case was not reached earlier due to the unavailability of Wanzer's counsel and overcrowding in the court's docket. (2Rep. R. at 21-31.) The record also reflects that the state filed no continuances in the case until January 5, 1999, after trial had already begun. ( Id. at 248.) Because the delay by the government was not unexplained or deliberate — i.e., the government sought no tactical advantage by delaying Wanzer's trial, this factor does not necessarily weight heavily against the state.
The clerk's record reflects that Wanzer's first court-appointed attorney moved to withdraw as his attorney of record in May 1997 because Wanzer refused to communicate with her and because he filed a grievance against her with the State Bar of Texas. (Clerk's R.at 36.)
As to the fourth factor, there is no indication in the record that Wanzer was prejudiced by the delay. See Doggett, 505 U.S. at 654; Barker, 407 U.S. at 532. Although Wanzer understandably experienced some degree of anxiety and concern, the record reflects that between the time immediately following his arrest and trial he was also being held pursuant to a parole "hold," both before and after his parole was revoked in April 1997. (2Rep. R. at 14-19.) Consequently, Wanzer would have remained incarcerated in custody of the TDCJ, notwithstanding the delay. (2Rep. R. at 16.) Further, Wanzer was unable to show with particularly any impairment to the defense. He relied, as he does in his federal petition, on vague assertions of inability to prepare his defense and lost witnesses — specifically, Snell and K.L. (Pet'r Response to Resp't Answer at 8; 2Rep. R. at 38.) The state court records reflect, however, that Snell and K.L. continued to reside at the same address where the offense took place. (2Rep. R. at 41-44.) Thus, this factor does not weigh heavily against the state either.
On the facts of this case, the court cannot say that Wanzer would have prevailed on his appeal had counsel raised a speedy trial claim. Further, after independently reviewing Wanzer's ineffective assistance claim in conjunction with the state court records, the state courts' adjudication of his ineffective assistance claim does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard. Moreover, Wanzer has neither alleged nor demonstrated that failure to consider the claim will result in a miscarriage of justice, i.e., that he is innocent of the crime for which he was charged and convicted. Accordingly, Wanzer's first ground is procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
3. Right to Confront Witnesses
In Wanzer's second ground, he contends he was denied his constitutionally protected right to confront his accuser K.L. (Pet. at 8; Mem. in Support at 21-25.) The record reflects that the state made numerous efforts to serve Snell with a subpoena to appear, but those efforts were unsuccessful. (2Rep. R. at 44; 5Rep. R. at 132-39.) The record further reflects that K.L. was actually sworn in as a witness on December 28, 1998 and ordered to reappear on January 5, 1999 to testify at trial. (5Rep. R. at 138-39, 163-70.) He failed to appear and could not be located at school on the day of trial. ( Id.)
The state appellate court concluded that Wanzer was estopped from asserting his confrontation claim under the "invited error" doctrine because Wanzer opposed the state's motion for continuance so that it could try to locate K.L. and bring him to court to testify. (State Habeas R. at 208-09.) This court finds no support for such a conclusion under federal constitutional law.
Although neither Snell nor K.L. testified at trial, the police officer testified to Snell's out-of-court statements concerning the events on the night in question. (5Rep. R. at 64-68.) The officer's testimony was admissible under the state-law hearsay exception for excited utterances. TEX. R. EVID. 803(2). Moreover, the sexual assault nurse examiner identified K.L. as the child victim in the case from a photograph taken at the time of the examination and testified to the facts of the sexual assault as relayed to her by K.L. and as well as K.L.'s identification of Wanzer as the perpetrator. (5Rep. R. at 93-98.) The nurse's testimony was admissible under the state-law hearsay exception as statements for purposes of medical diagnosis or treatment. Id. 803(4). As such, the out-of-court statements were so trustworthy that cross-examination of Snell and K.L. would be expected to add little to the reliability of the admitted hearsay evidence. See White v. Illinois, 502 U.S. 346, 357 (1992). Thus, the state's failure to call Snell or K.L. as witnesses and allow Wanzer an opportunity to cross-examine them did not violate the Confrontation Clause. See id. at 350, 354-58; Hinkle v. Cockrell, No. 4:01-CV-114-Y, 2001 WL 1478801 (N.D. Tex. Nov. 16, 2001) (not designated for publication).
The court notes that under Texas law the state is not required to call the victim as a witness if it can prove the elements of the offense beyond a reasonable doubt by other competent evidence. See Shelvin v. State, 884 S.W.2d 874, 877 (Tex.App.-Austin 1994, pet. ref'd). Further, under federal constitutional law, there is some support for the proposition that a person unless called to testify cannot be termed a "witness" against a defendant. See White, 502 U.S. at 359-65 (Thomas, J., concurring); McAllister v. Brown, 555 F.2d 1277, 1278 (5th Cir. 1977).
4. Ineffective Assistance of Counsel
In his third ground, Wanzer contends he received ineffective assistance of trial and appellate counsel because counsel (a) failed to raise a speedy trial claim on appeal, (b) failed to properly preserve a voluntariness claim regarding his confession to the CPS investigator in jail, (c) gave him erroneous advice regarding the admissibility of notarized statements by Snell and K.L. recanting their earlier allegations, (d) failed to argue an issue during the pretrial hearing on his motion to suppress evidence, (e) failed to conduct an investigation by failing to investigate the scene, the state witnesses, or his personal background, (f) refused to show him the state's witness list, counsel's hand-written jury strike list, and paperwork submitted by the state, such as the arrest report and book-in sheet, and (g) mentioned that he had committed other crimes during voir dire. (Pet. at 8-9; Mem. in Support at 26-32.)As noted in the court's discussion regarding Wanzer's first ground, 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, 469 U.S. at 393-95; Strickland, 466 U.S. at 688. An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688; see also Robbins, 528 U.S. at 287-88 (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 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) (citing Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983) (on reh'g)).
Further, appellate counsel is not required to urge every possible argument urged by his client on appeal, regardless of merit. Robbins, 528 U.S. at 288; Sharp, 930 F.2d at 452. It is counsel's duty to choose among potential issues, according to his judgment as to their merits and the tactical approach taken. Barnes, 463 U.S. at 749. The relevant question then is whether Wanzer has shown that appellate counsel's failure to raise a particular issue worked to his prejudice — i.e., that but for counsel's errors he would have prevailed on his appeal. Sharp, 930 F.2d at 453.
Where, as here, a petitioner's ineffective assistance claims have been reviewed on their merits and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. Haynes v. Cain, No. 00-31012, slip op., 2002 WL 1539761, at *3 (5th Cir. July 12, 2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 122 S.Ct. 1463 (2002).
Wanzer was represented by Ray at trial and on appeal. Wanzer raised his ineffective assistance claims in his state writ application, but, in light of Ray's affidavit concerning his representation of Wanzer, the state trial court found that counsel rendered effective assistance. (State Habeas R. at 179-80, 189-92.) In turn, the Texas Court of Criminal Appeals denied relief without written order on the findings of the trial court. Ex parte Wanzer, No. 39,677-02, at cover. Because his ineffective assistance claims have been reviewed on their merits and denied by the state courts, the court can grant federal habeas relief only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. See Bell v. Cone, 122 S.Ct. 1843, 1852 (2002).
Having independently reviewed each of Wanzer's claims raised in state court in conjunction with the state court records, this court cannot say that the state courts' application of Strickland's attorney-performance standard was objectively unreasonable. See Bell, 122 S.Ct. at 1852. Moreover, Wanzer's arguments fall short of satisfying the prejudice element of Strickland — i.e., that the result of his trial or his appeal would have been different had his attorney's performance not been deficient in any of those many respects.
5. Sufficiency of the Evidence
In Wanzer's fourth ground, he contends the evidence is legally and factually insufficient to prove the element of identity because there was no testimony that he, the person on trial, was the same person who committed the alleged offense. (Pet. at 9.; Mem. in Support at 33-35.) The state appellate court concluded that the evidence was legally and factually sufficient on the issue of identity even though no witness made an incourt identification of Wanzer as the person who sexually assaulted K.L. (State Habeas R. at 206.) Specifically, the court stated:
Notwithstanding Wanzer's complaint that there was no in-court identification of him, evidence of identity can be proven by either direct or circumstantial evidence. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986) (finding sufficient evidence to convict even when victim could not identify perpetrator); Meeks v. State, 897 S.W.2d 950, 954-55 (Tex.App.-Fort Worth 1995, no pet.) (holding evidence sufficient to convict even though no in-court identification of defendant as perpetrator). Based on the record before us of the testimony of the nurse, police officer, and CPS worker outlined above, we conclude that a rational jury could have found beyond a reasonable doubt that Wanzer was the person who committed the crime charged. Because the evidence supports that the person on trial was the same person who sexually assaulted K.L. on or about March 9, 1996, we overrule Wanzer's legal sufficiency complaint and point four. ( Id. at 207-08.)
In turn, the Texas Court of Criminal Appeals also rejected Wanzer's sufficiency claim by refusing his petition for discretionary review. Wanzer, No. 961-00, at cover. This was an adjudication regarding the merits of the claim.
As a preliminary matter, the court notes that a factual insufficiency claim is not cognizable on federal habeas corpus review. 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, the court does not address Wanzer's claim as it pertains to the factual sufficiency of the evidence on the issue of identity.
Further, having conducted an independent inquiry as to sufficiency under the Jackson v. Virginia standard, the court finds that the state disposition of the legal sufficiency-of-the-evidence claim appears consistent with Jackson. See Jackson v. Virginia, 443 U.S. 307 (1979). "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 applies 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 (5 th Cir.), cert. denied, 531 U.S. 849 (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) (quoting Jackson, 443 U.S. at 324 n. 16). 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 the instant case, the police officer testified that Snell told him Jerry Wanzer, her boyfriend, sexually assaulted K.L. (5Rep. R. at 66-67.) The sexual assault nurse testified that K.L. named Wanzer, his mom's husband, as the person who sexually assaulted him. ( Id. at 97.) The CPS investigator testified that the inmate she interviewed, who identified himself as Wanzer and who matched Wanzer's identifying information, confessed that he examined K.L.'s anus to see if his "butt was loose." ( Id. at 23-28.) An employee with the Tarrant County Jail testified that the OPS investigator requested an interview with Wanzer on the date in question and that the inmate with Wanzer's identification information agreed to the visit and signed the interview card. (6Rep. R. at 2-12.) Finally, a fingerprint expert with the sheriffs office testified that Wanzer's fingerprints matched those of the person booked into the jail on the alleged offense. (6Rep. R. at 22-25.) Although circumstantial, applying the appropriate weight to the state courts' determination on the issue, this court concludes that, viewed in the light most favorable to the prosecution, the evidence was such that any rational jury could have found that Wanzer was the same person who was charged with and who sexually assaulted K.L.
6. Out-of-Court Statements by Snell
In his fifth ground, Wanzer generally contends his due process rights were violated by the trial court's admission, over his objection, of the hearsay statements Snell allegedly made to the police officer. (Pet. at 10; Mem. in Support at 36-38.) The state trial court admitted the officer's testimony regarding Snell's out-of-court statements as to what she saw on the night in question after determining, outside the presence of the jury, that the statements were excited utterances admissible under Texas Rule of Evidence 803(2). (5Rep. R. at 50-62.) In state court, Wanzer relied only upon Texas evidentiary rules and case law in support of his claim against admissibility. Wanzer, No. 2-99-008-CR, App. Br. at 26-27; Wanzer, No. 961-00, PDR at 19-20.
If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him rights guaranteed by the federal constitution, he must say so, not only in federal court, but in state court. 28 U.S.C. § 2254(b)(1)(A); Duncan v. Henry, 513 U.S. 364, 366 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971). Because Wanzer did not make his federal due process claim under this ground in the Texas courts, the claim is unexhausted. Finley, 243 F.3d at 219.
A federal district court may, in the exercise of its discretion, raise a habeas petitioner's procedural default sua sponte and apply the default as a bar to further litigation of the petitioner's claims. Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998).
Wanzer cannot, however, return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). As previously noted, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer, 505 U.S. at 339-40; Coleman, 501 U.S. at 750; Finley, 243 F.3d at 219-20.
Wanzer has not given any explanation to excuse his default. Nor has he alleged and demonstrated that he is innocent of the crime for which he was convicted. Accordingly, Wanzer's fifth ground is procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51. Moreover, even if his claim was not procedurally barred, Wanzer has not shown that the state court's evidentiary ruling violated his federal constitutional rights under the due process clause or that the court's ruling rendered his trial fundamentally unfair. Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997), cert. denied, 522 U.S. 1121 (1998).
7. Motion to Quash the Indictment
In his sixth ground, Wanzer contends his due process rights were violated by the trial court's denial of his motion to quash the indictment because the indictment failed to allege a specific event for which he was to be tried. (Pet. at 10; Mem. in Support at 38-41.) As Cockrell correctly points out, it is well settled in our circuit that the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it is shown that the indictment is so defective that the convicting court had no jurisdiction. See Lockett v. Anderson, 230 F.3d 695, 702 (5th Cir. 2000); Alexander v. McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985). Where, as here, the state courts have held that an indictment is sufficient under state law, the federal court need not address that issue on habeas review. McKay v. Collins, 12 F.3d 66, 68-69 (5th Cir.), cert. denied, 513 U.S. 854 (1994).
8. Testimony of CPS Investigator
In his seventh ground, Wanzer contends his due process rights were violated by the trial court's admission of the CPS investigator's testimony regarding his confession that he examined K.L.'s anus to see if his "butt was loose." (Pet. at 11; Mem. in Support at 41-46.) He argues that his alleged confession was made during "custodial interrogation" without the benefit of Miranda warnings, thus rendering his confession involuntary. Wanzer filed a motion to suppress the confession, but, after a hearing, the trial court found that Wanzer agreed to the interview and voluntarily answered the investigator's questions. (Clerk's R. at 304-05.) As a matter of law, the court concluded that the CPS investigator was not required to read any warnings to Wanzer prior to, during, or after any questioning of Wanzer in jail. ( Id.) Wanzer raised his claim under this ground on direct appeal, but the appellate court refused to consider the merits of the claim because Wanzer's objection at trial did not comport with his claim on appeal. (State Habeas R. at 200.)
As previously noted, a state procedural default will generally bar federal habeas review of a claim unless the "cause and prejudice" standard is satisfied or a miscarriage of justice would result if the federal court did not entertain the claim. Coleman, 501 U.S. at 750. Wanzer has failed to demonstrate cause and prejudice or his actual innocence of the charged offense. Moreover, Wanzer's claim lacks merit because confessions to private individuals are not barred by Miranda absent government participation. United State v. Webb, 755 F.2d 382, 391 (5th Cir. 1985). The CPS investigator in this case was not a law enforcement officer and testified at the suppression hearing that she was not sent by law enforcement to obtain information from Wanzer. (4Rep. R. at 3, 7.) She further testified that she did not communicate with the D.A.'s office before interviewing Wanzer, submit her findings to the D.A.'s office, or speak with the state prosecutors until the week before trial. ( Id. at 13, 16.) Under these circumstances, it was not necessary that the CPS investigator give Wanzer Miranda warnings before interviewing him.
9. SUMMARY
In sum, Wanzer is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that Wanzer 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.
II. RECOMMENDATION
Wanzer'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 23, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. 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 August 23, 2002, to serve and file, not merely place in the mail, 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.