Opinion
No. 3-04-CV-1656-L.
November 18, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Damar Christopher White, 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 by a jury of possession with intent to deliver more than four grams but less than 200 grams of cocaine. Punishment was assessed at 15 years confinement. Petitioner did not appeal his conviction and sentence. Instead, he filed an application for state post-conviction relief. The application was denied without written order. Exparte White, No. 59,022-01 (Tex.Crim.App. Jun. 2, 2004). Petitioner then filed this action in federal court.
II.
In three grounds for relief, petitioner contends that: (1) he received ineffective assistance of counsel; (2) the evidence was insufficient to support his conviction; and (3) the state failed to produce witnesses in violation of his Sixth Amendment right to confrontation.
A.
Petitioner alleges that he received ineffective assistance of counsel because his court-appointed lawyer: (1) did not have a firm command of the facts; (2) failed to locate and interview potential witnesses; (3) did not hire an investigator or conduct an independent factual investigation; and (4) refused to file a motion to suppress.1.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the effective assistance of counsel. That right is denied when the performance of counsel falls below an objective standard of reasonable professional conduct and thereby prejudices the defense. Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S.Ct. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was fundamentally unreliable or proceeding fundamentally unfair due to deficient performance of counsel).
Where, as here, a state court has already rejected an ineffective assistance of counsel claim, 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); see also Yarborough, 124 S.Ct. at 4 (citing cases). The Supreme Court has made clear that the "unreasonable application" prong of section 2254(d)(1) permits a federal habeas court to "grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003), quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). 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 relevant inquiry is whether the application of clearly established federal law produced a result that "is so wrong that it is `unreasonable.'" Gardner v. Johnson, 247 F.3d 551, 559 (5th Cir. 2001).
2.
Petitioner first raised his ineffective assistance of counsel claim on collateral review in state court. His court-appointed lawyer, Jane Little, responded to the allegations in a sworn affidavit. Little explained that petitioner was arrested at a stash house that contained drugs, a gun, and a trap to protect the sale of drugs. He was the only person present at the house when the police executed a search warrant. After petitioner rejected two plea offers, Little conducted an extensive factual investigation in preparation for trial. She and her investigator went to the stash house three times and took pictures on two of those visits. Little also researched the title to the property and talked to a neighbor who lived next to the house. According to Little, petitioner had only one potential witness, his brother, who testified at trial. Little said she did not file a motion to suppress because petitioner lacked standing to challenge the validity of the search. Moreover, because none of the contraband was found near petitioner, Little elected to raise an affirmative link issue rather than a suppression issue. ( See St. Hab. Tr. at 25-26). The state court accepted Little's explanation and found that petitioner "was in no way denied his right to effective assistance of counsel at trial." ( Id. at 22, ¶ 3). This finding is conclusive in a subsequent federal habeas proceeding unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 123 S.Ct. 106 (2002) (presumption of correctness applies to both explicit and implicit findings necessary to state court's conclusions of mixed law and fact); Webb v. Dretke, 2003 WL 23139446 at *3 (N.D. Tex. Dec. 31, 2003) (same).
Petitioner has not offered any evidence, much less clear and convincing evidence, to rebut the state court findings. Evidently, petitioner believes that Little could have prepared a better defense had she reviewed the police report, which indicated that petitioner was not found near the drugs, and interviewed witnesses who lived next to the house, who would have testified that petitioner was only visiting a friend. ( See Pet. Mem. Br. at 5-6). However, Little's affidavit establishes that she was fully aware of those facts. Unfortunately, the results of her investigation were not helpful to petitioner, who was the only person at the stash house when the police executed a search warrant. Nor did petitioner, who did not live at the house, have standing to challenge the search. See United States v. Antone, 753 F.2d 1301, 1306 (5th Cir.), cert. denied, 106 S.Ct. 64 (1985) (defendant's legitimate presence on searched premises, without more, held insufficient to establish standing to challenge search).
Petitioner has not shown that Little was ineffective for failing to know the facts, for not investigating the case, or for refusing to file a motion to suppress. His speculative and conclusory assertions do not merit habeas relief. See Hereford v. Cockrell, 2003 WL 21999497 at *7 (N.D. Tex. Aug. 21, 2003), rec. adopted by 2003 WL 22387573 (N.D. Tex. Oct. 16, 2003) (citing cases) (habeas petitioner must show how alleged errors and omissions were constitutionally deficient).
B.
Petitioner further alleges that: (1) his attorney failed to investigate the circumstances of a prior conviction used to enhance his sentence or challenge the enhancement paragraph of the indictment; (2) the evidence was insufficient to support his conviction; and (3) the state failed to produce witnesses in violation of his Sixth Amendment right to confrontation. Respondent counters that all these claims are procedurally barred from federal habeas review.1.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). The state court opinion must contain a "plain statement" that its decision rests on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct 1038, 1043, 103 L.Ed.2d 308 (1989); Smith v. Collins, 977 F.2d 951, 955 (5th Cir. 1992), cert. denied, 114 S.Ct. 97 (1993). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of a federal constitutional claim. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982); Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992), cert. denied, 115 S.Ct. 151 (1994).
Two such rules are implicated in this case. First, it is well-settled under Texas law that the sufficiency of the evidence cannot be attacked for the first time on state collateral review. See Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994); Ex parte Adams, 768 S.W.2d 281, 293 (Tex.Crim.App. 1989). Second, article 11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2004). The procedural bar doctrine also applies to unexhausted claims if the state court would likely dismiss a successive habeas petition under article 11.07. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (procedural default occurs when prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred").
The statute provides, in relevant part, that:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.
TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a).
2.
Petitioner did not seek state post-conviction relief on the grounds that his attorney failed to investigate the circumstances of a prior conviction used to enhance his sentence or challenge the enhancement paragraph of the indictment. Nor did petitioner complain that the state failed to produce witnesses in violation of his Sixth Amendment right to confrontation. No explanation is offered to excuse this procedural default. The court finds that a Texas court, presented with these claims for the first time in a successive habeas petition, would likely find them barred under article 11.07. See Coleman, 111 S.Ct. at 2557 n. 1; Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1997), cert. denied, 118 S.Ct. 1845 (1998).
Petitioner raised three grounds for relief in his state writ: (1) his attorney failed to know the facts of the case, interview potential witnesses, conduct an independent factual investigation, and file a motion to suppress; (2) the evidence was insufficient to support his conviction; and (3) the indictment was defective. ( See St. Hab. Tr. at 7-8).
Although petitioner did challenge the sufficiency of the evidence in his state writ, he did not raise this argument on direct appeal. The state habeas court found that "[a]pplicant cannot, by way of Application for Writ of Habeas Corpus, challenge the sufficiency of the evidence upon which the conviction . . . is based." (St. Hab. Tr. at 22, ¶ 4). This finding clearly indicates that the court's decision was based on adequate and independent state grounds. Consequently, federal habeas relief is not proper. Renz, 28 F.3d at 432.
After the jury returned a guilty verdict, petitioner waived his right to appeal in exchange for a 15-year sentence. ( See St. Hab. Tr. at 26).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.