Opinion
Civil Action No. 4:01-CV-655-Y
April 15, 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 Title 28, United States Code, Section 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:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254
B. PARTIES
Petitioner Dwight D. Williams, TDCJ-ID #905014, is in the custody of the Texas Department of Criminal Justice, Institutional Division and is presently incarcerated in the Terrell Unit in Rosharon, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice. Institutional Division.
C. PROCEDURAL HISTORY
Dwight D. Williams was indicted on June 7, 1999 in Cause No. 0733324, for the offense of Possession of a Controlled Substance, Namely. Cocaine of Four Grams or more, but less than Two Hundred Grams. (1st State Habeas R at 28) Williams pleaded not guilty to the charge and received a jury trial in the 372nd Judicial District Court of Tarrant County, Texas, The jury found Williams guilty of the charged offense, and on December 16, 1999, the trial court assessed a punishment of twenty-five years' confinement. (1st State Habeas R. at 29) Williams filed a written notice of appeal on that same date. (1st State Habeas R at 49). The Texas Court of Appeals affirmed the judgment of the trial court in an unpublished opinion issued August 30, 2000 Williams v. State, No 2-99-570-CR, slip op. at 17 (Tex. App-Fort Worth Aug. 30, 2000, no pet.).
Williams has filed two applications for writ of habeas corpus. The Texas Court of Criminal Appeals adopted the findings of the trial court and denied Williams's first application without issuing a written order Ex parte Williams, No 49, 029-01 (Tex. Crim App. April 11, 2001) The second writ application was dismissed pursuant to Article 11.07, Section 4, in the Texas Code of Criminal Procedure. Ex parte Williams, No. 49, 029-02 (Tex.Crim.App. August 29, 2001).
Williams filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 3, 2001.
For purposes of this habeas corpus proceeding, the federal petition is deemed filed on the date the petitioner executed his petition and presumably deposited it in the prison mailing system Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998).
D. ISSUES
Petitioner presents the following as grounds for relief:
1. His conviction was obtained with evidence seized in an unlawful search and seizure;
2. He received ineffective assistance of counsel, and
3. The trial court erred in denying his motion to suppress evidence obtained without consent or probable cause.
E. RULE 5 STATEMENT
Respondent believes Petitioner has sufficiently exhausted available state remedies on the issues presented, and therefore, does not move for dismissal on this ground
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
The standards codified in 28 U.S.C. § 2254 guide our review of a petition for writ of habeas corpus filed by a state prisoner.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State count shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.28 U.S.C. § 2254(d). See also Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Relief is authorized if a state court arrives at a conclusion opposite to that reached by the 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, 120 S.Ct. 1495, 1523, 1518, 146 L.Ed.2d 389 (2000). Relief is also available if the state court identifies the correct legal principle but unreasonably applies that principle to the facts of the prisoner's case or reaches a decision based on an unreasonable factual determination See 28 U.S.C. § 2254(d)(1)-(2); Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere disagreement with the state court is not enough. The standard is one of objective reasonableness. Montoya, 226 F.3d at 404. State court determinations of underlying factual issues are presumed correct, and the petitioner has the burden to rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
G. DISCUSSION
1. Conviction Obtained with Evidence Seized in an Unlawful Search and Seizure Williams complains that his conviction resulted from evidence that was obtained as a result of an unlawful search and seizure. Respondent contends that Williams' claim is procedurally barred because Williams raised this particular allegation for the first time in his second state application for writ of habeas corpus, which the Texas Court of Criminal Appeals dismissed the claim for abuse of writ under Article 11.07, Section 4, in the Texas Code of Criminal Procedure.
Abuse of the writ qualifies as a procedural default, and may serve to preclude federal habeas relief Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995). A procedural default in state court proceedings does not per se bar consideration of a federal claim on habeas review. Harris v. Reed, 489 U.S. 255, 263 (1989). However, where a state count has "clearly and expressly" relied on a procedural bar, a state prisoner must demonstrate cause for the default and actual prejudice attributable to the default to be eligible for federal habeas relief Harris, 489 U.S at 263; Caldwell v. Mississippi, 472 U.S. 320, 327 (1985); Coleman v. Thompson, 501 U.S. 722, 750 (1991). The procedural bar may also be avoided if a petitioner can establish that a fundamental miscarriage of justice would result from application of the bar; however, this requires a statement and persuasive showing that he is actually innocent. Coleman, 501 U.S. at 750. In other words, the petitioner must demonstrate that, as a factual matter, he did not commit the crime for which he was convicted. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999).
To demonstrate "cause," the petitioner must prove that some factor external to the defense prevented compliance with procedural rules, or that such compliance was impossible because of governmental interference. Murray v. Carrier, 477 U.S. 478, 488 (1986). Williams has not demonstrated cause for his failure to comply with state procedural rules. Furthermore, he has not alleged prejudice, and the record indicates that there is no prejudice because his complaint of an illegal search and seizure is not a cognizable ground for federal habeas relief pursuant to Stone v. Powell, 428 U.S. 465 (1976). As discussed in more detail below, the legality of the search and seizure was reviewed on direct appeal in connection with Williams's assertion that his motion to suppress evidence should have been granted by the trial court. The Second Court of Appeals affirmed the trial court's decision to admit the evidence because the search and seizure was not illegal. Williams v. State, No. 2-99-570-CR, slip op. at 14-17. Finally, Williams has not demonstrated that he is innocent of the crime of which he was convicted. No fundamental miscarriage of justice will result from applying the procedural bar.
Williams has procedurally defaulted his complaint of a conviction based on the use of evidence obtained through an illegal search and seizure.
2. Ineffective Assistance of Counsel
Williams asserts that he was denied effective assistance of counsel because his attorney (1) had only three days to investigate, research, and prepare a defense, (2) did not interview or subpoena witnesses, and (3) failed to raise the claim of an illegal search and seizure on appeal. Respondent contends that each claim is without merit and that relief should be denied
The Supreme Court applies a two-prong test to claims of ineffective assistance of counsel, a petitioner must show (1) counsel's performance was deficient, and (2) that deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner bears the burden of proof to establish both elements by a preponderance of the evidence Strickland, 466 U S at 697; Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992).
To fulfill the first prong of the test, the petitioner bears the burden of proof to demonstrate that his attorney's performance was deficient. Jernigan, 980 F.2d at 296. The court should show great deference to the conduct of an attorney, and therefore, the petitioner must show that the performance was beyond the bounds of prevailing, objective professional standards Strickland, 466 U.S. at 687-89. The reviewing court should presume that "counsel rendered adequate assistance and that the challenged conduct was the product of a reasoned trial strategy." Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691. Any decision to not investigate must be evaluated in light of the circumstances at that time, not through the distorting view of hindsight. Strickland, 466 U.S. at 689.
To meet the second prong, the petitioner must affirmatively prove, not merely allege, prejudice Strickland, 466 U.S. at 693. Prejudice is established by demonstrating that the outcome of the proceeding would have been different absent counsel's deficient performance Strickland, 466 U.S. at 694; Manning v. Blackburn, 786 F.2d 710, 712 (5th Cir 1986). The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Strickland, 466 U.S. at 697.
A claim of ineffective assistance of counsel is a mixed question of law and fact Strickland. 466 U.S. at 698. Therefere, the federal court cannot grant habeas relief unless the state courts rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d)(1).
Williams claims that he was denied effective assistance of counsel because his trial attorney had limited time (three days) to investigate, research, and prepare a defense. This claim is refuted by the record Williams's trial attorney, Kimberly Kaufman, submitted an affidavit during the first state habeas corpus proceedings. According to her affidavit, Kaufman believed she had adequate preparation time and that Williams's defense was not compromised by any lack of preparation time. Furthermore, the affidavit contains examples of the work Kaufman performed, including discussions at length with Williams regarding the case; preparation of pretrial motions; and procurement of an investigator. The trial court found that the short notice of trial did not adversely impact the defense in this case, and such findings are entitled to a presumption of correctness 28 U.S.C. § 2254(e)(1) (2001). Williams has not presented any affirmative evidence to rebut either Kaufman's affidavit of the trial court's findings. His complaint of ineffective assistance of counsel due to inadequate preparation time is without merit.
Williams also asserts that he was denied effective assistance of counsel because his trial attorney did not interview or subpoena potentially helpful witnesses. Again, the record in this case demonstrates otherwise. The affidavit supplied by Kaufman in the state habeas proceeding outlines the steps taken to procure witnesses for Williams's defense. In August of 1999, Kaufman first asked Williams for a list of possible witnesses. On December 9, 1999, before the trial began, Kaufman issued subpoenas for witnesses requested by Williams. The subpoenas were given to the private investigator to serve. Because every attempt to serve the subpoenas was unsuccessful, Williams was given extensive use of the telephone on December 13, 1999, to contact those people he felt would be of assistance to the case. Williams also asked family members to assist the private investigator by identifying the individuals who were sought to testify for the defense. The next day, Kaufman called Williams's grandmother to ask about their progress, but learned the family was also unable to get witnesses to cooperate. In her attempt to corroborate Williams's defense, Kaufman finally was able to track down two previously unidentified individuals, but neither individual recalled the events in the same fashion as Williams. Kaufman and Williams decided not to use either party's testimony. The record is replete with the efforts Kaufman made to secure witnesses to interview and testify for the defense. Williams's complaint about counsel's alleged failure to subpoena and interview witnesses is baseless.
Moreover, in order to prevail on this ground, the petitioner must prove not only that a witness was not called, but also that the witness was willing and able to testify. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). The weight accorded the availability and willingness of a witness to testify must be tempered because any claims regarding what the witness would have said is speculative, and therefore of little value. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir 1986). Williams has failed to specifically identify any persons willing and able to testify in a manner favorable to his defense. Rather, he has only made a bald accusation that Kaufman failed to identify and subpoena "witnesses who could have given favorable testimony," (Pet at 7), which is insufficient to demonstrate that counsel's performance was ineffective.
Finally, Williams argues that he was denied effective assistance of counsel because Kaufman failed to raise the issue of an illegal search and seizure on direct appeal. However, the legality of the search and seizure was raised on appeal. The Second Court of Appeals thoroughly addressed all search and seizure claims in its opinion, and did not find that the search or seizure of evidence violated the Constitution. Williams v. State, No 2-99-570-CR, slip op. at 14-17 (Tex.App. — Fort Worth Aug 30, 2000, no pet.) Williams' argument is without merit.
Williams has failed to establish that he was denied effective assistance of counsel. The record demonstrates that Kaufman was not deficient in her representation of Williams. Furthermore, there is no evidence that Williams was in any way prejudiced by counsel's efforts. Federal habeas relief is not appropriate on this point.
3. Trial Court Erred in Denying Motion to Suppress
Finally, Williams maintains that the trial court erred by denying his motion to suppress evidence because the search and seizure occurred without consent or probable cause Respondent, however, urges that federal review of this claim is barred because the matter has been pursued in state court. Generally, a federal court does not have the authority to grant habeas corpus relief for Fourth Amendment claims unless the petitioner was denied the opportunity to fully and fairly litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976).
First, it is significant that Williams does not assert that he has been denied the opportunity to fully and fairly litigate his Fourth Amendment claim where no such claim is made, federal habeas corpus may not be granted to a state prisoner on the basis of the introduction at trial of evidence seized in an unconstitutional search and seizure. Bell v. Lynaugh, 828 F.2d 1085, 1091-92 (5th Cir 1987).
Furthermore, the facts clearly illustrate that Williams was not denied the opportunity to litigate his Fourth Amendment claim in the state courts. Rather, he has pursued this claim to the fullest extent possible. The matter was first raised in a pretrial motion to suppress all evidence as a result of his detention. The trial court held a hearing on the issue, at which Williams testified, and determined that the evidence was admissible. Williams next raised this claim on direct appeal. The Second Court of Appeals found that there were no Fourth Amendment violations, and accordingly, affirmed the trial court's decision to admit the evidence. Williams v. State, No 2-99-570-CR, slip op. at 17. Finally, Williams included his Fourth Amendment claim in his first state application for habeas corpus, which the Court of Criminal Appeals denied without written order based on the findings of the trial court Williams's claim of trial court error in denying the motion to suppress evidence is barred from federal habeas corpus relief under Stone v. Powell, 428 U.S. at 494.
RECOMMENDATION
The Petition for Writ of Habeas Corpus should be denied.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until May 7, 2002 to serve and file, not merely place in the mail, written objections to the United States Maiistrate 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, the 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.