Opinion
No. 3:03-CV-688-L.
December 2, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner John K. Weekley is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
In late January or early February 1999, Officer Xavier Castillo and Officer Mark Underwood, acting undercover on a citizen's complaint that drugs were being sold from an apartment in the 4900 block of Junius, approached Weekley at the apartment and attempted to buy drugs. (3 R.R. at 15-17, 21, 55, 59.) Officer Castillo gave Weekley $50 for cocaine, but Weekley fled the apartment with the money without giving Officer Castillo any drugs. ( Id. at 59-61.) A few days later on February 3, Officer Castillo and Officer Underwood saw Weekley in front of the same apartment. ( Id. at 10, 28-29.) Officer Castillo confronted Weekley about the $50 and told him that he now wanted $100 of cocaine. ( Id. at 10, 31, 57.) Weekley took Officer Castillo to an apartment six blocks away at 5520 Junius and introduced Officer Castillo to the "Latin males" who sold Officer Castillo cocaine. ( Id. at 10-11, 55-56, 58.) Officer Castillo and Officer Underwood then dropped Weekley off a few blocks away on Gaston Street. ( Id. at 41, 165.)
Weekley was indicted for unlawful delivery of more than one gram but less than four grams of cocaine. (C.R. at 2.) At trial, Weekley admitted taking the officers to the drug house, but testified that he did so only because they threatened him and because he was afraid. (3 R.R. at 131, 146, 166.) He believed the officers were drug dealers who had returned to exact revenge on him for stealing the $50. ( Id. at 126-31.) He testified that the officers cursed at him, but conceded that they never hit him or displayed any weapons. ( Id. at 127, 144, 156.) The officers denied threatening Weekley. (3 R.R. at 34-38, 44, 79-80, 86.) Implicitly rejecting Weekley's entrapment defense, the jury found Weekley guilty and assessed his punishment at 30 years' confinement. (C.R. at 92.) The Seventh District Court of Appeals affirmed Weekley's conviction, and the Texas Court of Criminal Appeals refused Weekley's pro se petition for discretionary review on November 21, 2001. Weekley v. State, No. 7-00-028-CR, 2001 WL 735741 (Tex.App.-Amarillo June 29, 2001, pet. ref'd) (not designated for publication). Weekley filed a state application for habeas corpus relief, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Weekley, No. 36,206-02 (Tex.Crim.App. Nov. 27, 2002) (not designated for publication). Weekley 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 1, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed, when papers delivered to prison authorities for mailing).
In his first state habeas corpus application, Weekley argued that he had been denied a timely parole revocation hearing in 1997. (1 State Habeas R. at 3-4.) The Court of Criminal Appeals denied the application without written order. Ex parte Weekley, No. 36,206-01 (Tex.Crim.App. Jan. 14, 1998) (not designated for publication).
Exhaustion of State Court Remedies
Dretke believes Weekley has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
Issues
Weekley argues his conviction was unconstitutional because:
1. the evidence was legally insufficient to support the jury's rejection of his entrapment defense,
2. the State failed to disclose Brady evidence,
3. trial counsel was ineffective,
4. the Court of Criminal Appeals incorrectly presumed the trial court's findings of fact and conclusions of law were correct on state habeas review, and
5. he was denied a fair hearing on state habeas review.
Standard of Review
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), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably 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 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).
Insufficient Evidence
Weekley argues that the evidence is legally insufficient to support the jury's implicit rejection of his entrapment defense. (Pet'r Mem. at 1-17; Pet'r Resp. at 3-20.) To review the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence in the light most favorable to the implicit rejection of entrapment, any rational trier of fact could have found against Weekley on entrapment beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All credibility choices and conflicting inferences are to be resolved in favor of the fact-finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822 (2000).
This claim was raised in Weekley's direct appeal, petition for discretionary review, and state habeas application. The claim was rejected by the Seventh District Court of Appeals and the Court of Criminal Appeals on direct review. Weekley, No. 7-00-028-CR, slip op. at 4-8, 2001 WL 735741, at *2-4. On state habeas review, the trial court and the Court of Criminal Appeals found that the conclusion reached on direct appeal was correct and binding on the habeas courts:
. . . The issue of an entrapment defense was presented during [Weekley's] trial and in the direct appeal of [Weekley's] conviction to the Court of Appeals. Said defense has been fully litigated. [Weekley] has not, in the instant application for writ of habeas corpus, presented this Court with any new facts or citations of authority which would require a reconsideration of this issue. This Court concurs with and is bound by the prior opinion of the Court of Appeals with regard to the disposition of [Weekley's] entrapment defense. (2 State Habeas R. at 64-65.)
Weekley has not overcome the presumption of correctness, which applies to these factual findings, with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Indeed, under Texas law, Weekley had to show (1) subjectively that he was induced by law enforcement to engage in the illegal conduct and (2) objectively that the conduct that induced him to act would have induced an ordinary person. TEX. PENAL CODE ANN. § 8.06(a) (Vernon 2003); England v. State, 887 S.W.2d 902, 910 (Tex.Crim.App. 1994). Weekley's own testimony showed that he had prior drug convictions and that he was not physically threatened. (3 R.R. 127, 144, 151-53, 156.) This evidence would allow a reasonable fact-finder to reject Weekley's entrapment defense. See, e.g., Bradford v. State, 997 S.W.2d 684, 686-87 (Tex.App.-Texarkana 1999, no pet.) (holding evidence legally sufficient to support rejection of entrapment when police set up drug deal to pressure defendant to testify in murder case and threatened to cut defendant's visitation with his children); Skero v. State, 866 S.W.2d 336, 339 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (holding defendant being receptive to idea of drug deal and fact that he was well versed in specifics of conducting a drug transaction negated an entrapment defense); Becker v. State, 840 S.W.2d 743, 747 (Tex.App.-Houston [1st Dist.] 1992, no pet.) (holding merely affording opportunity to commit crime is not entrapment); Gobin v. State, 690 S.W.2d 702, 703 (Tex.App.-Fort Worth 1985, pet. ref'd) (holding informant's threat that he would cut off defendant's drug supply and stop paying rent if defendant did not sell drugs to undercover officers was not entrapment).
Brady Evidence
Weekley asserts that the State failed to disclose favorable Brady evidence to the defense. He specifically argues that the complaint would have supported his version of events because it detailed that Hispanics, not Weekley, were selling drugs out of the apartment. (Pet'r Mem. at 18-21; Pet'r Resp. at 21-27.)
A petitioner's due-process rights are violated when the State suppresses impeachment or exculpatory evidence where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the State. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Weekley must prove that: (1) the State suppressed or withheld evidence (2) that was favorable and (3) material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998), cert. denied, 525 U.S. 1119 (1999). Weekley offers nothing more than his conclusory assertion that the complaint would have supported his claim that he was not involved in selling drugs out of the apartment named in the complaint. Indeed, Weekley was at the apartment named in the complaint and he helped the officers buy drugs. (3 R.R. 56-59.) The fact that he claims he was not connected to the Hispanics referred to in the complaint does not make the complaint material to guilt or punishment. Further, evidence is not considered suppressed if the defendant knew or should have known of the facts of any exculpatory evidence. Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994); Blackmon v. Scott, 22 F.3d 560, 564-65 (5th Cir.), cert. denied, 513 U.S. 1060 (1994). Weekley admits that he knew of the complaint's contents before trial (Pet'r Mem. at 22); thus, he has failed to show a Brady violation. Finally, it appears from counsel's affidavit in the state courts that the State complied with counsel's discovery requests and produced the complaint. (2 State Habeas R. at 79; Pet'r Mem. at 21, 23.)
Indeed, counsel explored the fact that the officers were looking for Hispanics at the apartment when they first encountered Weekley. (3 R.R. at 21, 28-29.)
Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Weekley's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Weekley asserts that trial counsel was constitutionally ineffective before and during trial when he:
1. failed to compel the State to produce the complaint, which was Brady evidence (Pet'r Mem. at 22-27; Pet'r Resp. at 28-31), and
2. did not investigate whether Hispanics at Weekley's apartment complex were the individuals sought by the police based on the complaint (Pet'r Mem. at 28-30; Pet'r Resp. at 31-35).
Counsel was not deficient regarding production of the complaint. As discussed above, the State complied with counsel's pretrial discovery request, and Weekley has failed to show that the complaint was material to guilt or punishment. See Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument); Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983).
In order to establish that counsel was ineffective due to a failure to investigate the case, Weekley must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp. 2d 661, 691 (S.D. Tex. 2001). Weekley argues that counsel never investigated the facts alleged in the complaint. Counsel stated in his affidavit that his investigation was hampered by Weekley's assertion that he could remember nothing of the case until his third conversation with counsel and then could only remember that he had been entrapped. (2 State Habeas R. at 79.) The state habeas courts credited counsel's statements and found that he had provided Weekley with constitutionally effective assistance. ( Id. at 65.) This finding is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1). Indeed, the extent of an attorney's duty to investigate must be viewed in the context of the defendant's cooperation with the attorney's investigation, taking into account the totality of the circumstances, with a heavy deference in favor of counsel's judgments. In other words, the scope of an investigation may be limited by a defendant's lack of cooperation. See Randle v. Scott, 43 F.3d 221, 225 (5th Cir.) (per curiam) (holding counsel not deficient when defendant told attorney to quit investigating prior conviction, even though it had been reversed, to expedite his guilty plea), cert. denied, 515 U.S. 1108 (1995); Bell v. Watkins, 692 F.2d 999, 1009 n. 11 (5th Cir. 1982) (holding counsel not deficient when defendant refused to provide a list of witnesses that would help his case), cert. denied, 464 U.S. 843 (1983); Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982) (same), cert. denied, 461 U.S. 910 (1983); Akridge v. Hopper, 545 F.2d 457, 459 (5th Cir.) (holding counsel not deficient where defendant claimed he could remember nothing of the crime and gave no indication of a credible defense), cert. denied, 431 U.S. 941 (1977). Weekley claimed he could not remember the facts of the offense except for his entrapment defense. Weekley has failed to overcome the presumption in favor of the habeas courts' finding with clear and convincing evidence. Thus, counsel was not deficient.
State Habeas Proceedings
In two grounds, Weekley argues that the state habeas corpus proceedings were erroneous because the Court of Criminal Appeals wrongly presumed the trial's courts findings and conclusions correct and because he did not receive a fair hearing. (Pet'r Mem. at 31-40; Pet'r Resp. at 35-36.) Errors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996). An attack on a state habeas proceeding does not entitle the petitioner to habeas relief with respect to his conviction because it "is an attack on a proceeding collateral to the detention and not the detention itself." Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838 (1987). Thus, this claim is not cognizable on federal habeas review. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527 U.S. 1056 (1999).
Summary
Weekley is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Weekley 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.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED.