Opinion
CIVIL ACTION NO. 4:02-CV-1010-Y
May 19, 2003
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 under U.S.C. § 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:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. §
B. PARTIES
Petitioner Stephen Dee Zerschausky, Jr., TDCJ-ID # 1047580, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Boyd Unit in Teague, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Late at night on December 28, 1996, police found Zerschausky asleep in his truck in a left turn lane with his engine running and his truck in gear. (3 Rep. R. at 25-27.) After waking Zerschausky, Officer Nordyke and Detective Briggs smelled alcohol on him and conducted field sobriety tests, which he failed. (Id. at 27-43; 4 Rep. R. at 19-22.) Officer Nordyke arrested Zerschausky and took him to jail where he refused to take a breath test or any further sobriety tests. (3 Rep. R. at 65-66; 4 Rep. R. at 23-24.)
Because he had been previously convicted twice of driving while intoxicated, Zerschausky was indicted for felony driving while intoxicated. (1 State Habeas R. at 28.) A jury found him guilty and assessed his punishment at 14 years' confinement. (Id. at 29.) Zerschausky appealed. The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Zerschausky's petition for discretionary review. Zerschausky v. State, No. 2-99-199-CR (Tex.App.-Fort Worth Dec. 7, 2000, pet. ref'd) (not designated for publication). Zerschausky filed a state application for writ of habeas corpus, which the Court of Criminal Appeals denied without written order. Ex parte Zerschausky, No. 53, 198-01 (Tex.Crim.App. Sept. 11, 2002) (not designated for publication). The Court of Criminal Appeals dismissed Zerschausky's second state habeas application as a successive and, thus, abusive writ. Ex parte Zerschausky, No. 53, 198-02 (Tex.Crim.App. Nov. 6, 2002) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2003). Zerschausky filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 9, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Zerschausky raises four issues:
1. The evidence was legally insufficient to support his conviction.
2. His detention and arrest violated the Fourth Amendment.
3. Trial counsel was constitutionally ineffective.
4. The state court of appeals failed to fully address his jury-charge argument.
E. RULE 5 STATEMENT
Cockrell argues that Zerschausky's insufficiency claim has not been properly exhausted and asserts that it has been procedurally defaulted; however, Cockrell believes that Zerschausky's remaining allegations have been properly exhausted.
F. DISCUSSION
1. Legal Standard for Granting Habeas Corpus Relief
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), cert. denied, 123 S.Ct. 963 (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).
2. Sufficiency of the Evidence
Zerschausky argues that the evidence was legally insufficient to support his conviction. He asserts that there was no evidence to show he operated a motor vehicle in a public area or that he was twice previously convicted of driving while intoxicated. (Federal Pet. at 7.) Cockrell argues that because Zerschausky did not raise these allegations in either his petition for discretionary review or in his first state habeas application, they are not exhausted and are, thus, procedurally barred. (Resp't Answer at 10.) Zerschausky did raise these contentions in his first state habeas application, which renders them sufficiently exhausted. (1 State Habeas R. at 13, 20-21.) E.g., O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999); Richardson v. Procunier, 762 F.2d 429, 430 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983).
Cockrell also argues that because the Court of Criminal Appeals denied Zerschausky's claim without written order, it can be assumed that it did so on procedural grounds. (Resp't Answer at 10.) See Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1988) (holding evidentiary sufficiency claims not cognizable in post-conviction, collateral attack); Ex parte Williams, 703 S.W.2d 674, 677 (Tex.Crim.App. 1986) (same). By denying Zerschausky's application "without written order," the Court of Criminal Appeals did not clearly and expressly deny Zerschausky's claim on an independent and adequate state procedural ground, which would render the claim procedurally barred in federal court. To prohibit a federal court's collateral review, the state court must have expressly relied on the procedural default as the basis for disposing of the claim. Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999). Here, neither the trial court, nor the state court of appeals, nor the Court of Criminal Appeals mentioned procedural default as a basis for denying the claim. Cf. West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996) (holding sufficiency claim procedurally barred after state habeas trial court held claim was procedurally defaulted and the Court of Criminal Appeals denied without comment), cert. denied, 520 U.S. 1242 (1997); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994) (same). Thus, it would be inappropriate to apply a procedural bar in this case. Cf. Bledsue, 188 F.3d at 256-57 (holding claim not procedurally barred when last state court to render a reasoned decision addressed the merits).
As stated above, Zerschausky asserts that there was no evidence to show he operated a motor vehicle in a public area or that he was twice previously convicted of driving while intoxicated. (Federal Pet. at 7.) 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).
At trial, the State introduced two judgments that show Zerschausky had two previous convictions for DWI. (4 Rep. R. at 29.) This is sufficient evidence to prove the enhancement element of felony DWI. 43 GEORGE E. DIX ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE PROCEDURE, § 38.148 (2d ed. 2001); see TEX. PENAL CODE ANN. § 49.09(b) (Vernon 2003). Further, Zerschausky was found asleep at the wheel of his truck, which was stopped on an active roadway with the engine running and in gear. Zerschausky was alone in the cab of the truck. (5 Rep. R. at 15-16.) This evidence is legally sufficient to show Zerschausky was "operating" the truck while intoxicated. E.g., Denton v. State, 911 S.W.2d 388, 389-90 (Tex.Crim.App. 1995); Hearne v. State, 80 S.W.3d 677, 679-80 (Tex.App.-Houston [1st Dist.] 2002, no pet.); see TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003).
3. Fourth Amendment
Zerschausky also argues that his conviction was unconstitutional because the evidence against him was obtained in violation of the Fourth Amendment. Cockrell argues that this claim is procedurally barred because it was initially raised in his second state habeas application, which the Court of Criminal Appeals dismissed as an abusive application. (Resp't Answer at 7-9.) But Zerschausky raised this issue in his first state habeas application, which was denied on the merits. (1 State Habeas R. at 16-17.) Thus, this claim is not procedurally barred.
However, federal courts have no authority to review a state court's application of Fourth-Amendment principles in habeas corpus proceedings unless the petitioner was denied a full and fair opportunity to litigate his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). Zerschausky raised this claim in the trial court before trial and in his first state habeas corpus application. (Clerk R. at 35; State Habeas R. at 16-17.) Because Zerschausky was provided a full and fair opportunity to litigate his Fourth-Amendment claim in state court, it is barred from federal habeas corpus review. E.g., Janecka v. Cockrell, 301 F.3d 316, 320-21 (5th Cir. 2002), cert denied, 123 S.Ct. 1264 (2003).
4. Ineffective Assistance of Counsel
Zerschausky next argues that trial counsel was constitutionally ineffective because he did not object to the trial court's statements regarding voir dire and because he did not properly budget his time during voir dire. Zerschausky did not raise this claim in his petition for discretionary review or his first state habeas application. The first time he raised this assertion was in his second state habeas application, which was dismissed as a successive and, thus, abusive application. (2 State Habeas R. at 11-12.)
Federal review of a claim is procedurally barred if the last state court to consider the claim clearly based its denial of relief on procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Coleman v. Thompson, 501 U.S. 722, 729 (1991). The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman, 501 U.S. at 750; Finley v. Johnson, 243 F.3d 215, 219-20 (5th Cir. 2001).
Zerschausky argues that his second state habeas application was actually a supplement to his first application and should not have been considered as a separate collateral attack. (Pet'r Resp. at 2-3; 2 State Habeas R. at 4.) However, Zerschausky filed his "supplement" on a separate habeas application form and he filed it shortly after his first habeas application had been denied. (2 State Habeas R. at 2.) This claim is procedurally barred based on the Court of Criminal Appeals' express holding that Zerschausky's second filing was procedurally defaulted under the abuse-of-the-writ doctrine.
Even if Zerschausky's second filing should have been considered a supplement, the claims raised therein would be unexhausted and, thus, procedurally barred because they were filed too late to be considered by the habeas courts. Castille v. Peoples, 489 U.S. 346, 351 (1989); Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert denied, 513 U.S. 1084 (1995).
5. State Court of Appeals' Opinion
Zerschausky argues that the state court of appeals violated the Texas Rules of Appellate Procedure when it failed to fully address his jury-charge arguments in its opinion. This claim is purely a question of state law and is not cognizable on federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Molo v. Johnson, 207 F.3d 773, 775-76 n. 9 (5th Cir. 2000); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983).6. Summary
In sum, Zerschausky is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Zerschausky 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.
II. RECOMMENDATION
Zerschausky's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 6, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636 (b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 6, 2003 to serve and file written objections to the United States Magistrate 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, is returned to the docket of the United States District Judge.