Opinion
NO. 3-03-CV-2522-P
March 4, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner William Jeffrey Wells, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of aggravated sexual assault of a child and sentenced to 75 years confinement. His conviction and sentence were affirmed on direct appeal. Wells v. State, 2002 WL 202488 (Tex.App.-Dallas, Feb. 11, 2002, pet. ref d). Petitioner also filed an application for state post-conviction relief. The application was denied without written order on the findings of the trial court. Ex parte Wells, No. 56, 722-01 (Tex.Crim.App. Sept. 3, 2003). Petitioner then filed this action in federal court.
II.
Petitioner raises two broad issues in three grounds for relief. Succinctly stated, petitioner contends that: (1) the prosecutor knowingly used perjured testimony to obtain his conviction; and (2) he received ineffective assistance of counsel.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214(1996). Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may grant habeas relief only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2). 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 Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct, at 1523. See also Wiggins v. Smith, __ U.S. __, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Id., 123 S.Ct, at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous — the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct, at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).B.
In two related grounds, petitioner complains that the prosecutor knowingly used perjured testimony at trial and that his attorney failed to object to the admission of this tainted evidence. On direct examination, the 12-year old victim of the sexual assault testified that petitioner ejaculated on her stomach after forcing her to have intercourse. (SF-II at 176). Petitioner then ordered the victim to the bathroom to "wipe that stuff off." ( Id.). The victim complied and wiped the semen from her stomach with a towel. ( Id.). After the assault was reported to the police, a field officer collected evidence from the scene, including a towel found in the bathroom. Subsequent testing revealed no semen or seminal fluid on the towel. ( See St. Hab. Tr. at 59; SF-II at 133). Defense counsel confronted the victim with these test results on cross-examination:
Q: [BY DEFENSE COUNSEL]: And you know that the police came out and they took the sheets and they took the towels and they took everything that you said that [petitioner] — you know the word — do you remember telling the police the word "cummed"?
A: Yes.
Q: Okay. In fact, you told the police that [petitioner] cummed on the sheets and cummed and that you wiped it up with a towel, didn't you?
A: Yes, I wiped it off on me with a towel.
Q: Right. And the police came out and they got all the towels and sheets, didn't they?
A: They didn't get all the towels and the sheets, they just got what I wore.
Q: They got the ones that you said that all this stuff was wiped up with though, right?
A: No, they got the towel that I bathed with and my underwear —
Q: Okay. And they got the towels and stuff that supposedly that you wiped the stuff up with, right?
A: Yes.
Q: Okay. And you know they did tests on those too, didn't you?
A: Yes.
Q: And you know there wasn't any evidence whatsoever that there was any kind of substance, any type of seminal fluid or sperm. You know that there was nothing on there, don't you?
A: I don't know.
(SF-II at 200-01) (emphases added). Because the results of tests performed on the towel were known to all parties before the victim testified at trial, petitioner accuses the prosecutor of violating his due process rights by eliciting contradictory testimony from the victim on direct examination.
1.
The due process clause prohibits the use of perjured testimony to obtain a conviction. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 1014 (1972); Black v. Collins, 962 F.2d 394, 406 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992). In order to establish a due process violation based on the use of perjured testimony, a habeas petitioner must prove that: (1) the testimony was false; (2) the prosecutor knew it was false; and (3) the evidence was material. Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir. 1996), cert. denied, 117 S.Ct. 968 (1997) (citing cases). Evidence is "material" only if there is a reasonable probability that it affected the outcome of the trial. Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995); Andrews v. Collins 21 F.3d 612, 626 (5th Cir. 1994), cert. denied, 115 S.Ct. 908 (1995).
2.
Petitioner has failed to prove that his due process rights were violated. There is absolutely no evidence that the victim lied at trial or that the prosecutor knew her testimony was false, hi an affidavit submitted to the state habeas court, the prosecutor explained:
I interviewed the complainant and believed her testimony to be truthful. Having talked to the complainant I found her to be credible and found the physical evidence, including the notches in her hymen and the presence of trichomonas supported her testimony. The presence or absence of semen on the towel was not conclusive evidence in my opinion. As the field officer pointed out at trial, when he tried to get the complainant to show him what clothing she had been wearing when the assault occurred, the complainant was confused and uncertain about what clothes she had actually been wearing. The police officer collected some clothes anyway in the hopes it was the right clothing and had not been washed since the assault occurred. Likewise, the officer was not sure if the towel he collected from the scene was the one actually used after the assault. More than a day had passed before the police were called to the complainant's home to investigate the case and collect evidence. Although the presence of semen on the towel would have further supported the complainant's testimony, it was my opinion that the absence of semen on the towel did not discredit her in any way.
(St. Hab. Tr. at 59). The state habeas court accepted this explanation and rejected petitioner's claim of Prosecutorial misconduct. ( Id. at 63). Petitioner has not shown that this finding is unreasonable. At most, he has identified contradictory testimony and minor discrepancies in the record that are not material to the outcome of the case. Defense counsel attempted to exploit these inconsistencies at trial and the jury was able to consider this evidence in evaluating the credibility of the victim. Without more, petitioner has failed to establish a constitutional violation that merits habeas relief. See United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1990) (contradictory testimony, standing alone, is not tantamount to perjury); Scott v. Cockrell, 2003 WL 21518005 at *4 (N.D. Tex. Jun. 30, 2003), adopted by 2003 WL 21769801 (N.D. Tex. Jul. 21, 2003).
C.
Petitioner also criticizes his attorney for failing to introduce test results showing that he did not have trichomonas, a sexually transmitted disease allegedly passed to the victim. This argument fails for two reasons. First, petitioner has not produced any medical records or other evidence to support his claim that he tested negative for trichomonas. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot begin to analyze ineffective assistance of counsel claim without affirmative showing of missing evidence or testimony); Beall v. Cockrell, 174 F. Supp.2d 512, 523 (N.D. Tex. 2001) (same). Second, counsel was able to elicit such evidence from a doctor who testified at trial. ( See St. Hab. Tr. at 65). This ground for relief is without merit and should be overruled.RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.