Opinion
No. 3:02-CV-1117-D.
November 16, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. Parties : Petitioner Kelvin Leonard Williams is an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division. Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. Factual and Procedural History : On March 4, 1999, Fred Miles asked petitioner and Jerry Terrell to go for a ride. (6 R.R. at 66.) As they were driving around, Miles recognized Roland Reed standing outside an apartment complex with Ernest Garett and Brandon Owens. ( Id. at 71-72, 167-69.) Miles stopped the car, approached Reed, and began arguing with him about money that Reed owed Miles. ( Id. at 75-77.) Miles got back in the car, gave petitioner a gun, and told petitioner that he would pay him $500 and $100 worth of cocaine if he would kill Reed. ( Id. at 81-84.) Petitioner got out of the car and shot Reed in the face, killing him. ( Id. at 84.) Later, petitioner sold a gun to Allan Turner. (6 R.R. at 225-30.)
Petitioner was arrested the next day and indicted for murdering Reed for remuneration, a capital offense. (8 R.R. 14-15, 160-62; State Habeas R. at 85.) At trial, Garett, Owens, and Terrell testified that petitioner shot and killed Reed. (6 R.R. at 84, 179-80; 7 R.R. at 116-20.) Another eyewitness, Lorenzo Hunter, could not identify petitioner as the shooter but gave a description which closely matched the description of petitioner given by Terrell, Garett, and Owens. (7 R.R. at 186-90.) Further testimony established that the gun petitioner sold to Turner was the gun that was used to kill Reed. (7 R.R. at 165-73.) Petitioner testified that he did not shoot Reed and that he did not match the description of the shooter given by the four eyewitnesses. (8 R.R. at 156-57, 165.) A jury found petitioner guilty of the lesser-included offense of murder and assessed a life sentence. (State Habeas R. at 89.)
The Eastland Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Petitioner's pro se petition for discretionary review. Williams v. State, 34 S.W.3d 587 (Tex.App.-Eastland 2000, pet. ref'd). Petitioner filed a state application for habeas corpus relief challenging his conviction, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Williams, No. 50,447-01 (Tex.Crim.App. Oct. 3, 2001) (not designated for publication). Petitioner filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on May 17, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. Issues : Petitioner argues that (1) the trial court erred by "overruling applicant's objection to amend a murder charge" in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments; (2) the evidence was legally and factually insufficient to support his conviction; and (3) trial counsel was constitutionally ineffective.
Petitioner essentially alleges that the trial court erred by charging the jury on the lesser included offense of murder. ( See Pet. at 7; Pet'r Mem. in Supp. at 1-33.)
E. Exhaustion : Dretke argues that petitioner's ineffective-assistance-of-counsel claim is "so general and conclusory that [he] cannot tell whether it is exhausted or not," but he then appears to assert that it is not exhausted and has been procedurally defaulted. (Resp't Answer at 3.) Dretke does not dispute that petitioner's remaining allegations have been properly exhausted.
Liberally construing petitioner's pro se filings consistent with Sonnier v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998), it appears from petitioner's supporting memorandum, which adequately discusses counsel's alleged deficiencies, that his ineffective assistance claims have been properly exhausted. ( Compare Pet'r Mem. in Supp. at 74-78 with State Habeas R. at 31-34.) Nevertheless, the Court need not definitively determine whether these claims have been exhausted because it may deny a habeas petition on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b) (2). Further, the Fifth Circuit has recognized that federal courts may not grant habeas corpus relief on claims which were "denied review by the state courts because of a procedural default, absent a showing both of cause for the default and resulting prejudice." McKinney v. Estelle, 657 F.2d 740, 743 (5th Cir. 1981). McKinney thus implies that the district courts may also deny habeas relief even for procedurally defaulted claims. Because it appears that petitioner is entitled to no habeas relief on his ineffective assistance claims, and in the interests of judicial efficiency, the Court proceeds to the merits.
II. 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).
III. JURY CHARGE
In his first claim, petitioner argues that the trial court erred in charging the jury on the lesser included offense of murder because he was solely indicted for capital murder for remuneration. (Pet'r Mem. in Supp. at 1-33.)
A defendant's due process rights may be violated if the jury is instructed on an offense not included in the indictment and the defendant did not have notice that he might be charged with that offense. See, e.g., Schmuck v. United States, 489 U.S. 705, 717-18 (1989). However, an instruction on a lesser included offense may be given over the defendant's objection because the defendant has sufficient notice, when charged with the greater offense, that he may also have to defend the lesser included charge. Fransaw v. Lynaugh, 810 F.2d 518, 529 (5th Cir.), cert. denied, 483 U.S. 1008 (1987). As the Fifth Circuit explained in Fransaw,
[t]his "lesser included offense doctrine" permits the court to charge the jury on a lesser unindicted offense where that offense is complete upon commission of "some of the elements of the crime charged." Berra v. United States, 351 U.S. 131, 76 S. Ct. 685, 688, 100 L. Ed. 1013 (1956). The doctrine "developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged." Keeble v. United States, 412 U.S. 205, 93 S. Ct. 1993, 1995, 36 L. Ed.2d 844 (1973). As the doctrine now stands, defendants also frequently invoke it. Id.
The Supreme Court has discussed the lesser included offense doctrine on numerous occasions without suggesting that it is in any way inconsistent with the constitutional requirement that defendant be put on notice of the charges against him. E.g., Berra; Keeble; Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed.2d 392 (1980); Sansone v. United States, 380 U.S. 343, 85 S. Ct. 1004, 13 L. Ed.2d 882 (1965); Stevenson v. United States, 162 U.S. 313, 16 S. Ct. 839, 40 L. Ed. 980 (1896). Our cases likewise discuss the lesser included offense doctrine without questioning its constitutionality. E.g., United States v. Williams, 775 F.2d 1295, 1302 (5th Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1477, 89 L. Ed.2d 732 (1986); Alexander v. McCotter, 775 F.2d 595, 599-601 (5th Cir. 1985); Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982), cert. denied, 464 U.S. 843 (1983). In short, the doctrine is on sound constitutional footing and is available to the government as well as to defendants. C. Wright, 2 Federal Practice Procedure (Criminal) § 498 at 800 (1982).810 F.2d at 529. Thus, the trial court's instruction on the lesser included offense of murder does not implicate petitioner's constitutional rights.
"Absent a violation of the Constitution, we defer to the state court interpretation of its law for whether a lesser-included-offense instruction is warranted." Creel v. Johnson, 162 F.3d 385, 390-91 (5th Cir. 1998). Under Texas law, either the State or the defendant may request an instruction on a lesser included offense when (1) the lesser included offense is "`included within the proof necessary to establish the offense charged,'" and (2) some evidence exists "`in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.'" Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997) ( en banc) (quoting Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.) (emphasis in original), cert. denied, 510 U.S. 919 (1993)).
In this case, the state court of appeals found that "[n]either party disputes that murder is a lesser included offense of capital murder. Indeed, the statute defines capital murder as the commission of murder as defined in Section 19.02(b) (1), accompanied by one of eight aggravating factors. See Section 19.03(a)." Williams v. State, 34 S.W.3d 587, 588 (Tex.App.-Eastland 2000, pet. ref'd). The state appellate court further found that the jury could have disbelieved the only witness that testified that petitioner was promised remuneration for killing Reed, and that there was "evidence in the record which would allow a rational jury to find that [petitioner] was only guilty of the lesser included offense of murder." Id. at 590. When considering the claim on state habeas review, the trial court concurred with findings of the court of appeals that this claim lacked merit. (State Habeas R. at 76.) By denying the state writ without written order on the findings of the trial court, the Texas Court of Criminal Appeals agreed. Ex parte Williams, No. 50,447-01 (Tex.Crim.App. Oct. 3, 2001) (not designated for publication).
In view of the requirements of state law with respect to an instruction on a lesser included offense, the trial court did not err in granting the State's request for such an instruction. Petitioner has failed to rebut the presumption of correctness as to the state courts' adjudication of this claim. Accordingly, this claim provides no basis for federal habeas relief.
IV. SUFFICIENCY OF THE EVIDENCE
Petitioner argues that the evidence is legally and factually insufficient to support his conviction because witnesses to the murder gave contradictory testimony; thus, the State failed to prove that petitioner was the person who shot Reed. (Pet'r Mem. in Supp. at 33-71.) The state appellate court rejected this argument on direct appeal. Williams, 34 S.W.3d at 590-91. On state habeas corpus review, the trial court deferred to the court of appeals. ( See State Habeas R. at 76.)
This court will not address petitioner's factual-insufficiency argument because it is not cognizable on federal habeas. Fox v. Johnson, No. 4:00-CV-291-Y, 2001 WL 432247, at *2 (N.D. Tex. Apr. 20, 2001), adopted, 2001 WL 540215 (N.D. Tex. May 17, 2001).
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 prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense 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 court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 324 n. 16).
As discussed above, three eyewitnesses identified petitioner as the person who shot and killed Reed. Although petitioner testified that he did not murder Reed, the jury was free to disbelieve his testimony and believe the eyewitnesses. This evidence was legally sufficient to prove petitioner murdered Reed. Petitioner has failed to carry his heavy burden to show that the state court determinations of this issue were based on unreasonable determinations of the facts in light of the evidence presented in the state court proceeding or that such decisions were contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d). Accordingly, petitioner is entitled to no federal habeas relief on his claim that the evidence is legally insufficient to support his conviction.
V. 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.
Petitioner's complaints about counsel were reviewed and rejected during state collateral review proceedings. (State Habeas R. at 31-33.) 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). Petitioner asserts that trial counsel was constitutionally ineffective when he:
Dretke argues that petitioner's claim is too vague to determine if it is exhausted. However, petitioner adequately discusses counsel's alleged deficiencies in his supporting memorandum, which allows this court to determine that they are properly exhausted. ( Compare Pet'r Mem. in Supp. at 74-78 with State Habeas R. at 31-34.) See generally Sonnier v. Johnson, 161 F.3d 941, 945 (5th Cir. 1998) (per curiam) (stating pro se filings are to be liberally construed).
1. did not object to the admission of the gun;
2. failed to introduce evidence that Turner could not have bought the gun from petitioner; and
3. did not object when petitioner was reindicted and arraigned less than two days later.
See TEX. CODE CRIM. PROC. ANN. art. 26.03 (Vernon 1989) (dictating arraignment shall be held at least two days after service of indictment).
See TEX. CODE CRIM. PROC. ANN. art. 26.03 (Vernon 1989) (dictating arraignment shall be held at least two days after service of indictment).
(Pet'r Mem. in Supp. at 74-78.)
First, petitioner cannot meet the prejudice requirement of the Strickland test. The evidence overwhelmingly establishes petitioner's guilt; thus, he cannot show that the result of the trial would have been different had counsel acted differently. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002), cert. denied, 538 U.S. 1001 (2003); Creel v. Johnson, 162 F.3d 385, 396 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999).
Second, petitioner has failed to carry his burden of proof on his claims. Both the state trial court and the Texas Court of Criminal Appeals considered and rejected petitioner's ineffective assistance claims. (State Habeas R. at 77.) An independent review of his claims in conjunction with the state court records does not indicate that the state courts' decision was contrary to or involved an unreasonable application of Strickland, or that it was based on an unreasonable determination of the facts as presented in the state court proceedings. 28 U.S.C. § 2254(d), (e)(1).
Third, petitioner's arguments fall short of satisfying the deficient-performance element of Strickland, i.e., that counsel's alleged errors were so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. The gun was properly admitted, and counsel cannot be held deficient for failing to object to it. Further, counsel did admit evidence tending to show that Turner could not have bought the gun from petitioner because Turner thought he bought the gun from petitioner on a Friday and petitioner was arrested on Friday. (6 R.R. at 14-15; 8 R.R. at 225-26.) 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).
Petitioner's argument that counsel improperly failed to object to the arraignment that was held the day after petitioner was reindicted is also meritless. (Pet'r Mem. in Supp. at Apps. 1-2.) There is no evidence in the record to show why counsel did not object. Perhaps, he felt that the case should not be further delayed and that a one-day deferment would neither benefit nor cost petitioner. This court will not second-guess counsel's trial strategy. Strickland, 466 U.S. at 689-90. Petitioner pleaded not guilty to the charge, and an objection would have only delayed the arraignment for one day, which petitioner has not shown would have altered the outcome of his case. See Morris v. State, 30 Tex. Ct. App. 95, 115, 16 S.W. 757, 757 (1891) (holding violation of predecessor statute to article 26.03 did not alter the outcome of the trial or appeal).
VI. SUMMARY
Petitioner is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that petitioner 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.
VII. EVIDENTIARY HEARING
Upon review of the pleadings filed and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
VIII. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the request for habeas corpus relief brought under 28 U.S.C. § 2254.