Opinion
No. 3:03-CV-1777-M
February 27, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has previously been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Henry Vondra Wilborn ("Wilborn" or "Petitioner") is confined at the French Robertson Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Abilene, Texas. Respondent is the Director of TDCJ-CID. Statement of the Case: Wilborn was charged with aggravated robbery with a deadly weapon, habitual, and entered a plea of not guilty in cause number F-9953764-JL. The jury found him guilty, found the enhancement paragraphs true, and imposed a sentence of 40 years in the penitentiary.
Petitioner's conviction was affirmed by the Fifth Court of Appeals in Wilborn v. State, No. 05-00721-CR, 2001 WL 914968 (Tex.App.-Dallas Aug. 15, 2001) (not selected for publication). His petition for discretionary review ("PDR") was refused on February 20, 2002. His petition for a writ of certiorari was denied on October 7, 2002. Wilborn v. Texas, 537 U.S. 921, 123 S.Ct. 310 (2002).
Wilborn filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07. Ex. Parte Wilborn, Appl. No. 52, 951-02. On May 14, 2003 the Texas Court of Criminal Appeals denied Petitioner's application without written order on the findings of the trial court without a hearing. See Ex Parte Wilborn at cover.
Petitioner filed a motion for leave to file a writ of mandamus which was denied without written order on July 31, 2002. Ex Parte Wilborn, Appl. No. 52, 951-01 at cover.
In response to Wilborn's petition and this court's show cause order Respondent filed an answer together with copies of Petitioner's prior state proceedings on October 15, 2003. Petitioner filed a traverse on November 12, 2003.
Findings and Conclusions:
Review of Wilborn's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
In his first ground for relief, Petitioner maintains that the evidence was legally insufficient to support his conviction because the judge made no deadly weapon finding. Petitioner misapprehends the law. Although, the use of a deadly weapon is an element which the prosecution must prove for the offense of aggravated robbery, (see, e.g., Application No. 52, 951-02 at 171 and 173(excerpts from the jury charge)), the jury found Wilborn guilty of aggravated robbery as charged, thus there was no requirement under the state law that either the jury or the trial court make a separate affirmative finding that a deadly weapon was used. See, e.g., LaFleur v. State, 106 S.W.3d 91, 95 (Tex.Crim.App. 2003),
Petitioner also asserts a claim of factual insufficiency based on a claim that no assault occurred, that nothing was taken from the victim, and that there was no demand for money. Factual insufficiency is a creation of Texas law whereby the reviewing court scrutinizes the fact finder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). However, the relevant inquiry in a federal habeas proceeding is whether "[a] rational trier of fact could have found proof of guilt beyond a reasonable doubt." Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir.), quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92 (1979). This standard of review controls even if state law would impose a more demanding standard of proof. Schrader, 904 F.2d at 284; see also Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991).
Tangential to Petitioner's sufficiency of the evidence claims are his fourth ground — complaining of the victim's in-court identification and his sixth ground — alleging the use of perjured testimony by the prosecution. The record reflects that a hearing was held outside the jury's presence at which Officer Ann Wiggs testified (See Reporter's Record v.3 at 5-18). She testified that the victim pointed out Petitioner's vehicle, which she in turn stopped within three hundred yards of the robbery location, and that when the victim was brought to the arrest location he immediately and spontaneously identified Wilborn as the perpetrator. Under such circumstances no colorable claim of an unduly suggestive pre-trial identification is present.
With respect to Wilborn's sixth ground, the record reflects that Officer Wiggs and Officer Michael T. Babies testified that when the victim observed the knife recovered from Petitioner's vehicle he identified it as the knife which was used. The victim on the other hand testified that he did not recall seeing the weapon at the scene of the arrest. However, when shown the knife, previously admitted into evidence, he testified that it looked like the knife which Wilborn had exhibited. The discrepancies in the witnesses' recollections were matters reserved to the jury in determining the weight and credibility to be given to the testimony. Petitioner has not proved that the testimony of the police officers was false, nor that the prosecution presented such testimony, knowing that the same was false, and therefore has not met his burden on this claim. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959).
In rejecting Wilborn's sufficiency of the evidence claims raised in the context of his direct appeal, the intermediate appellate court specifically applied the United States Supreme Court's decision in Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789 (1979). Wilborn v. State, 2001 WL 914968 *2-3. Wilborn, in turn, raised his sufficiency of the evidence claims in his pro se petition for discretionary review, which was refused by the Texas Court of Criminal Appeals. Wilborn has not satisfied either 28 U.S.C. § 2254 (d)(1) or (2) and therefore is not entitled to relief under grounds one and two of his petition.
The evidence presented to the jury is summarized in the Fifth Circuit's opinion and is more fully set out, with citations to the record, in the parties' direct appeal briefs.
In his fourth ground for relief he alleges that he was the victim of an illegal search in violation of the Fourth Amendment. Aside from the fact that the sub rosa testimony of Officer Wiggs shows otherwise, merits review of this claim is foreclosed by the United States Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976). His fifth ground for relief is simply a variation on his Fourth Amendment claim and is likewise foreclosed. Moreover, since it is clear that his arrest and subsequent search were without a warrant, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978) is wholly inapposite.
His seventh ground for relief, which he characterizes as a Brady violation, is in fact merely a variation on his sixth ground in which he claimed that the prosecution knowingly presented false testimony. For the reasons stated above this ground is meritless.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
In his eighth through twelfth grounds for relief Wilborn seeks to raise issues relating to the court's charge to the jury. See, e.g., Application No. 52, 951-02 at 171-78.
It is not entirely clear as to the basis for his eighth ground. He does not identify the specific instruction which he claims should have been given. Rather he alludes to comments made by the trial court in the course of the voir dire examination of the jury panel (See Reporter's Record v.2 at 15-26). Read in context the rather protracted and somewhat inartful comments of the judge were nothing more than an explanation as to why a grand jury's indictment does not constitute evidence of guilt.
In ground nine it appears that Wilborn complains that the members of the jury panel were not asked, if chosen as jurors, whether they would give greater weight to the testimony of police officers, merely because they were employed in law enforcement. Absent some showing that a member of the petit jury harbored such a bias, this ground is purely speculative and fails to present a cognizable ground for relief.
In ground ten Petitioner complains of the absence of an instruction regarding parole eligibility. In ground eleven he complains of the absence of a lesser included offense, i.e. robbery without the use of a deadly weapon, and in his twelfth ground he complains of the absence of instructions in the jury charge with respect to the law of parties. No request was made for these instructions, except for an instruction on a lesser offense of terroristic threat (See Reporter's Record v.3 at 175).
The evidence before the jury did not raise the lesser included offense of terroristic threat. Moreover, the failure to instruct on a lesser included offense in a non-capital case has been held by the Fifth Circuit not to give a cognizable claim for federal habeas relief, e.g., Valles v. Lymough, 835 F.2d 126, 127 (5th Cir. 1988), and Wilborn has cited no decision of the United States Supreme Court which holds to the contrary. In order to present a cognizable claim, a petitioner must show that the omission of an instruction from a court's charge "so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737 (1997) (citing Cupp v. Naughton, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973)). Wilborn has not discharged this heavy burden and therefore relief on his tenth, eleventh, and twelfth grounds for relief should be denied.
In his thirteenth ground Petitioner alleges that the evidence presented at the punishment phase of his trial was insufficient to establish that he was subject to an enhanced punishment by virtue of his two prior felony convictions. Although he attacked the sufficiency of the evidence to sustain the jury's verdict in the guilt-innocence portion of the trial in his direct appeal, this claim was raised for the first time in his art. 11.07 application. In addressing this claim, the Texas courts found that the same was procedurally barred, citing well established state law. See Application No. 52, 951-02 at 167 ¶ 1; see also Clark v. State of Texas, 788 F.2d 309 (5th Cir. 1986). Merits review of the claim is procedurally barred. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54(1991).
In his fourteenth ground for relief he complains that he was denied the right of allocution, relying on the provisions of FED. R. CRIM. P. 32(i)(4)(A)(ii). This rule applies only to federal courts in which sentences are imposed by the court, not a jury. It is a rule of criminal procedure which is not applicable to state courts.
In his remaining grounds he attacks the assistance provided by his trial attorney and by his appellate counsel. The representation afforded by each attorney is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id at 698, 104 S.Ct. at 2069. Moreover, in order to be entitled to relief Wilborn must show that the Court of Criminal Appeals' denial of this claim was an objectively unreasonable application of federal law. See Yarborough v. Gentry, ___ U.S. ___, 124 S.Ct. 1 (2003).
With respect to Petitioner's allegations leveled against his trial attorney (See Pet.'s Br. at 53-56) it is self-evident from the record that any motion to suppress based on the Fourth Amendment would have been lacking in merit and fufile. Similarly there was no basis for objecting to the admissibility of the knife (State's Exh. 4). The attorney's failure to request an instruction on the parole law was not objectively unreasonable. His remaining claims are patently conclusory and fail to demonstrate ineffective assistance under Strickland.
As observed in the Fifth Court of Appeals' opinion, the Texas state courts have generally concluded that such an instruction benefits the prosecution rather than a defendant since it informs the jury that a defendant will become eligible for parole prior to full service of the sentence imposed by the jury.
Wilborn's attack on his appellate counsel's representation is likewise unavailing (See Pet.'s Br. at 57-61). The issues which he claims counsel should have raised on appeal clearly lacked merit, as discussed above. Further, the record shows that the enhancement paragraphs of the indictment were sufficiently proved (See State's Exhs. 13 and 14, Supplemental Reporter's Record). CONCLUSION;
Each of the grounds for relief presented in this § 2254 petition have been considered and rejected by the Texas state courts. Wilborn has failed to prove either (1) that the Texas courts unreasonably applied Supreme Court decisions or (2) that the state courts unreasonable determined the facts in light of the evidence presented in his state court proceedings. See 28 U.S.C. § 2254.
It is therefore recommended that this petition be denied and dismissed.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.