Opinion
CIVIL ACTION NO. 3:01cv70-D
September 4, 2001
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, the subject cause has been previously referred to the 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 pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Curtis Duane Wright (Wright) is an inmate confined at the Clements Unit of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) at Amarillo. Respondent is the Director of TDCJ-ID.
Statement of the Case: Wright is currently incarcerated pursuant to judgments and sentences of the 282nd Judicial District Court of Dallas County, Texas, in Cause Nos. F96-76153-NS and F96-76243-NS, styled The State of Texas v. Curtis Duane Wright. Wright was charged in two separate indictments with the offense of aggravated assault arising from an altercation. After pleading not guilty both charges were tried before a jury, which found him guilty. The jury thereafter assessed punishment at seventy-five years confinement and a $10,000 in each case.
Wright's punishment was enhanced by various prior felony convictions including two attempted murders, a robbery, a theft, the unlawful carrying of a weapon, and the burglary of a vehicle.
Wright appealed both convictions to the Court of Appeals for the Fifth Judicial District of Texas, challenging the legal and factual sufficiency of the evidence adduced at trial. The Fifth Court of Appeals affirmed both convictions in an unpublished opinion. Wright v. State, 05-97-00570-CR and 05-97-00571-CR (Tex.App.-Dallas, February 23, 1999). Petitioner subsequently filed two petitions for discretionary review which were refused by the Texas Court of Criminal Appeals on June 23, 1999. Wright v. State, Nos. 739-99 and 740-99. On June 14, 2000, Wright filed a state application for writ of habeas corpus challenging both convictions pursuant to Texas Code of Criminal Procedure art. 11.07. Ex Parte Wright, Appl. No. 47, 198-01. On August 18, 2000, the trial court held a hearing on Wright's ineffective assistance of counsel claims and thereafter made findings of fact and conclusions of law. The Texas Court of Criminal Appeals subsequently denied Wright's application without a written order on the findings of the trial court after a hearing.
After Wright filed his petition and paid the filing fee a show cause order was served on Respondent. On July 19, 2001, Respondent filed an answer together with copies of Wright's prior state proceedings. Wright filed his reply thereto on July 19, 2001. It is not claimed that Wright has failed to exhaust state remedies and therefore his petition is before the court for review on the merits. Findings and Conclusions: Wright raises five grounds for relief, each relating to claims that he was denied effective assistance of counsel at trial.
In his first ground, Wright alleges that the assistance of his trial counsel, Scottie D. Allen (Allen), was adversely affected because Allen labored under an "actual conflict of interest" by virtue of his contemporaneous representation of Jarvis Cole (Cole). Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980). Specifically, Wright alleges that Allen advised Cole not to testify on behalf of Wright for fear that any such testimony could subject Cole to revocation of his probation.
According to Wright, Cole was an essential witness to the defensive issues of self-defense and defense of a third party. Writ Hearing, at 12-14.
Wright alleges that Allen advised Cole that any testimony he gave could form the basis for a violation of one of his conditions of probation, namely that he should avoid persons or places of disreputable or harmful character, and, furthermore, that he should not associate with individuals who commit offenses against either the State of Texas or the United States. Writ Hearing, at 16. Additionally, Wright alleges that Allen further advised Cole that his testimony had the potential to implicate him in the charges brought against Wright via party liability. Id.
The sole basis for Wright's argument is an affidavit signed by Cole. See Application No. 47, 198-01 at 75-77. Cole did not testify at the evidentiary hearing. However, Petitioner's attorney, Mr. Allen did. According to Allen, on July 15, 2000, Cole sent a letter to him recanting part of an affidavit Cole had previously submitted, at the behest of Wright, which indicated that Allen advised Cole not to attend Wright's trial. Writ Hearing, at 75; See also, Hearing Exhibit #3(Cole's letter to Allen). In this letter, Cole apologized to Allen for alleging something that they both knew not to be true. Hearing Exhibit #3. Additionally, although Wright contends that Allen was unwilling to call Cole to testify due to a conflict of interest, Allen testified that he specifically listed Cole on a witness subpoena sheet. Writ Hearing, at 54; See also, Hearing Exhibit # 1 (witness subpoena list filed March 7th, 1997). He further testified that he did not seek a writ to compel Cole's attendance at Wright's trial for fear that Cole might change his testimony from that appearing in Cole's affidavit, similar to what occurred with another defense witness, Dwayne Mattson (Mattson). Writ Hearing, at 56. The fact that Cole's prior felony convictions could have adversely affected his credibility, after impeachment by the prosecution, was also a concern of Allen's. Writ Hearing, at 57. To avoid this potential morass, Allen instead called Cole's wife, Jackie, herself an eyewitness to the underlying altercation, who provided a substantially similar account to that of her husband's. Writ Hearing, at 58.
Wright testified that he had the affidavit prepared for Cole. Writ Hearing, at 75.
According to the evidence presented at the evidentiary hearing, the fact that Cole was not called as a witness was in no way attributable to any action or advise from Allen suggesting that Cole make himself unavailable as a witness. See also Hearing Exhibit #3. Furthermore, according to Allen, at no time during his representation of Wright did Allen "actively represent" Cole so as to create a conflict of interest. US v. Olivares, 786 F.3d 659 (5th Cir. 1986) (court of appeals held that counsel's prior representation of a testifying witness is not enough to create a conflict of interest such that an ineffective assistance claim can be substantiated, unless such a conflict adversely affected counsel's representation.)
There is some evidence in the record that Allen did represent Cole during probation matters both before and after Wright's trial; however, Allen specifically testified that he did not represent Cole at any time during his representation of Wright. Writ Hearing, at 50; See also Findings of Fact, Nos. 3 and 4, App. No. 47, 198-01 at pp. 93-94.
The Fifth Circuit requires that an alleged conflict of interest be actual, and not speculative, to cause representation to fail Sixth Amendment standards, Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir.l981), cert. denied 456U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308(1982). Therefore Wright's ineffective assistance of counsel claim must be assessed under the traditional Strickland two-prong test.
Wright has urged the court to adopt the more lenient Cyler standard applicable to conflicts of interest arising from the representation of multiple clients; however, since no such conflict can be gleaned from the record the court will follow the "superior framework" of Strickland. Beets v. Scott, 65 F.3d 1258 (5th Cir 1995) cert, denied 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996).
When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068 (1984). When considering the reasonableness of counsel's conduct, a court must indulge a strong presumption that it falls within the wide range of reasonable professional competence, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct at 2065; Westley v. Johnson, 83 F.3d 714, 719 (5th Cir. 1996), cert denied, 519 U.S. 1094, 117 S.Ct. 773 (1997). In determining whether prejudice has resulted from counsel's alleged deficient performance, the court must determine whether counsel's performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1993).
A court reviewing an ineffectiveness claim need not consider the two prongs of the Strickland test in any particular order, because a failure to establish either one defeats the claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Amos v. Scott, 61 F.3d 333, 348 (5th Cir.), cert, denied, 516 U.S.1005, 116 S.Ct. 557(1995).
Moreover, pursuant to § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); See also Loyd v. Smith, 899 F.2d 1416, 1424 (5th Cir. 1990)("Federal courts in habeas proceedings are required to grant a presumption of correctness to a state court's explicit and implicit findings of fact if supported by the record."), cert denied, 508 U.S. 911, 113 S.Ct. 2343 (1993). Furthermore, a petitioner must rebut this presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Wright also alleges that Allen was deficient for failing to interview and investigate Dwayne Mattson, a potential defense witness. Wright contends that had Allen met with Mattson, Allen would have discovered the personal animus he harbored toward Wright, arising from having his car impounded and, subsequently, repossessed upon Wright's arrest as well as an unsuccessful vehicle transaction with a good friend of Wright's, Jarvis Cole, and therefore would have striken his name from the witness subpoena list. Further, Wright alleges that he specifically requested Allen not to subpoena Mattson. However, Allen testified that he had no specific recollection of such a request. Writ Hearing, at 58.
During Wright's trial, Mattson, while testifying on direct, specifically denied this allegation. See SOF, Vol. II at 224.
According to the evidence before the court, Mattson executed an affidavit, on behalf of Wright, indicating that Mattson was with Wright on the night of the altercation and that he witnessed Wright being attacked by the two stabbing victims named in the indictments, one of whom brandished a knife. See SOF, Vol. 11 at 221-22. However, Mattson, of his own volition, approached the prosecuting attorney, recanted the information contained in his prior affidavit, and testified that Wright asked him to make false statements on his behalf. See SOF, Vol. II at 223. Although, as Wright contends, Allen may have told him that "I subpoenaed [Mattson] down here. I gave [the prosecution] [Mattson]," these comments do not change the fact that Allen originally placed Mattson on the witness subpoena list in reliance on Mattson's affidavit. Despite Wright's contention that Allen failed to interview Mattson, the evidence indicates that Allen attempted on several separate occasions to contact Mattson via telephone and, at one point, even sent an investigator to search for Mattson, all to no avail. Writ Hearing, at 59. Wright further contends that the jury foreperson told Allen, subsequent to the verdict, that Mattson's testimony swayed the jury.
Mattson further testified that he gave this statement to a woman in Allen's office. See SOF, Vol. II at 222.
Writ Hearing, at 44.
Writ Hearing, at 59.
Although the fortuitous circumstance that Mattson chose to initially speak with the prosecutor and that thereafter he testified as a prosecution witness undoubtedly were detrimental to Wright's defense, at the time Allen issued the subpoena for Mattson's appearance, his action was wholly consistent with Sixth Amendment standards. Since Allen's conduct may not be viewed in hindsight, Wright cannot establish ineffective assistance of counsel based upon Allen's decision to subpoena Mattson.
In his third ground, Wright alleges that Allen was deficient by failing to request a self-defense instruction in the case involving the aggravated assault of Jim Elisha. Wright contends that he was entitled to such an instruction regardless of its likelihood for success. However, under Texas law, the defendant initially bears the burden of producing evidence to raise the issue of self-defense. Saxton v. State, 804 S.W.2d 910 (Tex.Crim.App. 1991). Unless and until such evidence is adduced to properly raise the issue of self-defense the State bears no burden of persuasion on the issue. Id. Wright proffered no evidence to contradict Elisha's testimony that only after Wright punched/stabbed him did Elisha attempt, unsuccessfully, to grab and detain Wright. Indeed, Wright's own witness, Jackie Cole, testified during Wright's trial that she did not see Elisha strike anyone, including Wright, and, furthermore, if Wright did possess a knife on the night of the altercation he would not have been justified in stabbing anyone. See SOF Vol. III at 385 and 414.
Accordingly, because Wright did not satisfy his burden of production on the issue of self-defense, he was not entitled to an instruction and, therefore, there is no evidence before the court demonstrating that Allen's failure to request such an instruction fell below objectively reasonable standard of representation.
Wright contends that the great differential between Elisha's size, six feet-three inches and "morbidly obese," and his size, five feet-eight inches and one hundred and seventy-five pounds, amply raises the issue of self-defense. The state courts found this argument to be without merit, as does this court.
Next, Wright alleges that Allen's representation was deficient because he failed to interview either Eleanor Wright, Wright's mother, or John Mills, Wright's supervisor, prior to their testimony at the punishment phase of the trial. Wright alleges that he did not want his mother called to testify because she had a heart condition. After reviewing the record it appears that Wright was distraught over testimony the state elicited from the two witnesses on cross-examination. Wright, by his own admission, had no problem with Allen calling Mills to testify. However, although Allen did not recall being asked to not call Mrs. Wright, Allen called her because he wanted the jury to hear something positive and good about Wright. Writ Hearing, at 68.
Mr. Mills testified, during the punishment phase, that Wright had previously been incarcerated for two attempted murder convictions, arising from the "shooting up" of a motel room, as well as several other offenses. SOF Vol. V at 651-652. Mrs. Wright confirmed most of Wright's prior convictions and attempted to clarify the motel incident by stating that "[Wright] was mad and there were drugs involved, and [Wright's] girlfriend was in the room with [a] drug dealer and [Wright] came in and shot up the motel, shooting into the air." SOF Vol. V at 665-671.
Fed. Pet. pg 8a.
As required by Bridge v. Lynaugh, quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2065, this court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional competence or could be considered "sound trial strategy." 838 F.2d 770, 773 (5th Cir.), re'hg denied en banc, 843 F.2d 499 (5th Cir. 1988). Certainly this scenario, calling a defendant's mother to testify during the punishment phase on behalf of her son, falls within the rubric of reasonable trial strategy. Because Wright has proffered no evidence to overcome this presumption his contention fails.
Moreover, under Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993), this court is charged with determining whether there is a reasonable probability that but for counsel's alleged errors, a defendant's non-capital sentence would have been significantly less harsh. However, this court need not address both components enunciated in Spriggs if a petitioner makes an insufficient showing on one. Cockrum v. Johnson, 119 F.3d 297, 307 (5th Cir. 1997) (citing Spriggs, 993 F.2d at 87). In the instant petition, Wright simply cannot demonstrate prejudice, that is, that he received a significantly harsher sentence. The prosecution had already presented evidence of Wright's prior convictions via his penitentiary packets, earlier in the punishment phase. SOF Vol. V at 642-645; See also State's Exhibits 17 and 18. Therefore the testimony of his supervisor and mother did not present any, additional, detrimental evidence. Moreover, Allen's decision to call these witnesses-attempting to produce something positive on behalf of Wright, even though this tactic was subject to being blunted by negative information elicited through cross-examination — was a strategy decision consistent with constitutional standards.
Wright's sentences were substantially less than the life or ninety-nine year terms of imprisonment which could have been imposed.
Accordingly, since Wright cannot satisfy the requirements imposed by Spriggs, particularly that of prejudice, he is not entitled to relief on this claim.
Finally, Wright alleges that Allen's representation was deficient because he failed to seek the appointment of a medical expert who could explain the differences between a "stab" and a "cut" as averred by the State in its two indictments against Wright. First, with regard to Cause No. F96-76153, the State averred that Wright ". . . caus[ed] bodily injury to Jim Elisha . . . by cutting . . ." (emphasis added). However, in Cause No. F96-76243, the State averred that Wright ". . . caus[ed] bodily injury to Daniel Briones . . . by stabbing . . ." (emphasis added). Wright contends, as he did in his appeal to the Texas Fifth Court of Appeals, that the differences between "stab" and "cut" represent fatal variances between what was pled in the indictments and what was proven at trial. Wright's argument, that there is a material difference between the two words, is predicated on the case of Blount v. State, 376 S.W.2d 844 (Tex.Crim.App. 1964). In Blount, the court distinguished between "stab" and "cut," saying that stab usually implies to thrust or to plunge while cut usually implies to gash or slash. However, the Blount court focused on the defendant's intent to murder by his physical action and held there was no inference of that intent by his action in that case. Although intent was at issue in Wright's cases, it is clear that the mens rea is the same for either cutting or stabbing. Therefore, not only is Wright's reliance on Blount misplaced, but its holding was expressly overruled in Boazman v. State, 501 S.W.2d 894, 896 (Tex.Crim.App. 1973).
Moreover, under Texas law, whether a variance between a charging instrument and evidence is fatal hinges on the materiality of the variance. Dutton v. State, 874 S.W.2d 206, 209 (Tex.App. — Houston [14th Dist.] 1994, pet. ref'd). A variance is immaterial if it is inconceivable that the accused could have been misled or prejudiced thereby. Id., citing French v. State, 629 S.W.2d 279, 281 (Tex.App.-Fort Worth 1982, pet. ref'd). WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1145 (9th Ed. 1985) defines "stab" as to wound or pierce by the thrust of a pointed weapon. That dictionary at 318 defines "cut" as to penetrate with an edged instrument; a wound made by something sharp; gash. Not only are the definitions of these two words nearly synonymous, but they were used interchangeably during testimony at Wright's trial.
Accordingly, in light of the interchangeable nature between the words cut and stab, there is no fatal variance and, therefore, Allen's failure to procure a medical expert in an effort to distinguish between the two did not render Allen's assistance ineffective.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition for writ of habeas corpus should be denied.
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.