Opinion
CIVIL ACTION NO. 4:03-CV-358-Y
October 21, 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 28 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. § 2254.
B. PARTIES
Petitioner Alvin Winston, TDCJ-CID #1036363, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Clements Unit in Amarillo, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Criminal Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On May 13, 2000, Darrell Guyton and Winston began arguing, which quickly escalated into a physical fight. (3 Rep. R. at 17-23.) Winston pulled a pistol and shot Guyton eight times. (Id. at 23-27.) Guyton survived the attack.Winston was charged with attempted murder and aggravated assault with a deadly weapon, enhanced with a prior conviction for possession of cocaine. (State Habeas R. at 40.) At Winston's first trial, one of the witnesses to the fight, Torrance Ellis, testified that he could remember nothing of the incident. (Pet'r Mem. in Supp. at 5; 3 Rep. R. at 77-78.) Winston's first trial ended in a mistrial because the jury could not reach a verdict. (Clerk R. at 83.) At Winston's second trial, three witnesses, including Ellis, testified that Winston and Guyton had a fight that resulted in Guyton being shot; however, Guyton was the only witness who identified Winston as the shooter. (3 Rep. R. at 24, 64-65, 80-81.) On April 10, 2001, the jury found Winston guilty of aggravated assault with a deadly weapon and assessed his punishment at 35 years' confinement. (State Habeas R. at 41; Clerk R. at 89.)
Winston appealed, arguing that the trial court erred in failing to declare a mistrial based on the State's improper jury argument. (Appellant's Br. at iv.) The Second District Court of Appeals affirmed the judgment, and the Texas Court of Criminal Appeals refused Winston's petition for discretionary review. Winston v. State, No. 2-01-269-CR (Tex.App.-Fort Worth Mar. 14, 2002, pet. ref'd) (not designated for publication). Winston filed one state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Winston, No. 55, 393-01 (Tex.Crim.App. Apr. 23, 2003) (not designated for publication). Winston 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 April 29, 2003. 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
Winston raises six issues:
1. Trial counsel was constitutionally ineffective.
2. Appellate counsel was constitutionally ineffective.
3. The evidence was insufficient to sustain his conviction.
4. The State failed to disclose favorable evidence.
5. The State's jury argument was improper.
6. The state habeas trial court erred by not holding an evidentiary hearing on his application.
E. RULE 5 STATEMENT
Dretke believes Winston has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA's compelled deference to decisions of state courts is now familiar. 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, 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).
2. 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.
Winston's complaints about counsel were reviewed and rejected during state collateral review proceedings. 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).
Winston argues that the prejudice should be presumed because he was constructively denied counsel by trial counsel's sub-par performance. (Federal Pet. at 7; Pet'r Mem. in Supp. at 6-7.) Constructive denial of counsel happens when the defendant is deprived of "the guiding hand of counsel." Powell v. Alabama, 287 U.S. 45, 69 (1932). It can occur in cases involving the absence of counsel from the courtroom, conflicts of interest between defense counsel and the defendant, official interference with the defense, and counsel's failure to subject the State's case to the adversarial process. United States v. Cronic, 466 U.S. 648, 659 nn. 25 31 (1984). Thus, when a petitioner can establish that counsel was not merely incompetent but inert, Strickland prejudice will be presumed. Id. at 658-61; Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997). However, Winston's allegations of ineffectiveness do not rise to the level of a complete deprivation of counsel throughout the entire trial. See Bell v. Cone, 535 U.S. 685, 695-97 (2002) (holding attorney's failure must be complete for prejudice to be presumed); see also Johnson v. Cockrell, 301 F.3d 234, 238 (5th Cir. 2002), cert. denied, 123 S.Ct. 1901 (2003). Although Winston is not satisfied with the result of this trial and blames counsel, the record does not support Winston's argument that he was constructively denied counsel. E.g., Childress, 103 F.3d at 1229. Dissatisfaction with counsel's actions does not equate to no representation. Id.
a. Trial counsel
Winston asserts that trial counsel was constitutionally ineffective because he:1. did not object to Ellis's testimony;
2. did not seek to disqualify a juror who disclosed that he had prior knowledge of the case;
3. failed to inform him of his right to appeal; and
4. failed to object to the State's evidence and remained silent throughout the trial.
For the following reasons, Winston has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Winston first asserts that trial counsel was constitutionally ineffective because he did not object to Ellis's perjured testimony in the second trial. (Pet'r Mem. in Supp. at 5-6.) Winston contends that because Ellis stated in Winston's first trial that he did not remember the fight between Winston and Guyton and then remembered the fight in the second trial after the State coerced him necessarily means Ellis perjured himself. The State pointed out Ellis had previously claimed ignorance, and defense counsel fully cross-examined Ellis. (3 Rep. R. at 77-78, 85-96, 98.) Due process is violated if the State knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied, 519 U.S. 995 (1996). The record does not support Ellis's conclusory allegation that the State improperly or knowingly presented false testimony. Cross v. Johnson, 169 F. Supp.2d 603, 623 (N.D. Tex. 2001). Counsel was not deficient. Id.; see also Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983) (holding counsel's failure to question a witness about her alleged perjured testimony not deficient performance because could have been trial tactics).
Second, Winston argues that counsel was ineffective for failing to seek to disqualify a juror who had prior knowledge of the case. (Federal Pet. at 8; Pet'r Mem. in Supp. at 7-8.) After the jury was sworn, a juror stated that he had gone to high school with Guyton and another one of the eyewitnesses and that he had lived in the area of the crime scene. (3 Rep. R. at 9-10.) The juror affirmed that he had not made up his mind about the case because of this knowledge. (Id. at 10.) Under Texas law, the juror was not subject to a challenge for cause: he stated he was impartial notwithstanding his personal knowledge of the case. TEX. CODE CRIM. PROC. ANN. art. 35.16 (Vernon 1981). Thus, counsel was not deficient. See Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
Third, Winston argues that he was denied the right to appeal because trial counsel failed to inform him that he was entitled to a "full fledged direct appeal." (Federal Pet. at 7; Pet'r Mem. in Supp. at 11.) Construed liberally, Winston's pleadings allege that he was denied the effective assistance of counsel because of counsel's failure to inform him of his appellate rights, which is likewise governed by the Strickland standard. E.g., White v. Johnson, 180 F.3d 648, 651 (5th Cir. 1999). This claim is belied by the fact that trial counsel filed a notice of appeal on Winston's behalf and that the court admonished Winston in open court that he had the right to appeal and that he should discuss that right with his counsel. (Clerk R. at 111; 5 Rep. R. at 14.) Further, Winston cannot show prejudice under Strickland because he did not lose the right to appeal: an appeal brief was filed by court-appointed appellate counsel, and the state intermediate court of appeals affirmed the trial court's judgment. United States v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993); United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989); Norris v. Wainwright, 588 F.2d 130, 135 (5th Cir.), cert. denied, 444 U.S. 846 (1979).
Finally, Winston alleges that counsel was ineffective for failing to object to the State's evidence and remaining silent throughout the trial. (Federal Pet. at 7; Pet'r Mem. in Supp. at 8, 10.) The record reflects that counsel fully cross-examined the State's witnesses and argued to the jury that the State had not proved its case. (3 Rep. R. at 33-54, 55-56, 68-74, 85-96, 98, 107-112, 114; 4 Rep. R. at 7-13.) Counsel was not deficient. Cf. 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).
b. Appellate counsel
Winston also argues that appellate counsel was constitutionally ineffective because he failed to raise trial counsel's ineffectiveness on appeal. (Pet'r Mem. in Supp. at 11-12.) Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish deficient performance, Winston must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Winston must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id. As explained above, Winston's ineffectiveness claims have no merit. Thus, counsel was not deficient for failing to raise an issue on appeal that would have ultimately resulted in no relief. Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992).
3. Sufficiency of the Evidence
Winston argues that the evidence was legally insufficient to support his conviction and the deadly-weapon finding because Guyton was the only witness to identify him as the shooter. (Federal Pet. at 7; Pet'r Mem. in Supp. at 9-10.)
Winston raised his insufficiency challenge solely in his state habeas corpus application. (State Habeas R. at 7, 20-21.) The State did not address this argument in its reply to Winston's application. (Id. at 32-37.) The state trial court, in recommending denial of Winston's state writ application, merely stated that "there is no necessity for a fact-finding hearing on the applicant's allegations that he received ineffective assistance of trial counsel, the prosecution failed to disclose exculpatory evidence, he was denied a direct appeal, an improper juror was allowed at trial, and the State made an improper jury argument." (Id. at 39.) The Court of Criminal Appeals denied the application without written order. Dretke argues that Winston has procedurally defaulted his claim based on the state procedural bar that sufficiency of the evidence is not cognizable on post-conviction review, which was necessarily the reason relied on by the Court of Criminal Appeals in denying Winston's application. (Resp't Answer at 9, 11.) However, 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). In this case, no court has clearly denied relief based on procedural default. Further, because the Court of Criminal Appeals' denial is an adjudication on the merits of Winston's application, it would be inappropriate to assume a procedural bar on this ground. See Ex parte Torres, 943 S.W.2d at 472.
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). The evidence was legally sufficient to find that Winston shot Guyton with a deadly weapon. Under Texas law, a gun is a perse deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (Vernon 2003). Also, Guyton testified that Winston shot him multiple times with a pistol. (3 Rep. R. at 23-27.) This is legally sufficient evidence to uphold Winston's conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971) (concluding testimony of eyewitness alone sufficient to support jury's verdict); Davis v. State, 831 S.W.2d 839, 842 (Tex.App.-Dallas 1992, pet. ref'd) (affirming aggravated-robbery conviction by jury where only one eyewitness identified appellant and appellant presented five alibi witnesses).
4. Brady Violation
Winston argues that he was denied the right to a fair trial when the State withheld favorable evidence, i.e., that Winston was also injured in the shooting. (Federal Pet. at 7; Pet'r Mem. in Supp. at 9.) A petitioner's due-process rights are violated when the State suppresses impeachment or exculpatory evidence where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the State. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Winston must prove that: (1) the State suppressed or withheld evidence (2) that was favorable and (3) material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998), cert. denied, 525 U.S. 1119 (1999). However, evidence is not considered suppressed if the defendant knew or should have known of the facts of any exculpatory evidence. Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994); Blackmon v. Scott, 22 F.3d 560, 564-65 (5th Cir.), cert. denied, 513 U.S. 1060 (1994). Winston was certainly aware that he was injured in the shooting; thus, he has failed to show a Brady violation.
5. Jury Argument
Winston claims that the State erroneously argued at punishment facts that were not in evidence, which denied him a fair trial (Federal Pet. at 8; Pet'r Mem. in Supp. at 13-15):
I agree that your verdict won't be heard by everyone in the community because I don't see any reporters in here. But keep in mind that about 95 percent of all of our cases are handled by plea bargains and this verdict will help set the price of the plea bargains, 95 percent of the cases. (5 Rep. R. at6.)
The Second Court of Appeals held that any complaint about this jury argument was waived because trial counsel did not object to it. Winston, No. 2-01-269-CR, slip op. at 3. In the alternative, the appellate court held that the argument was not improper under state law as a plea for law enforcement. Id. at 4. In refusing Winston's petition for discretionary review on this issue, the Court of Criminal Appeals implicitly reached the same conclusion. See Ylst, 501 U.S. at 803 (holding when last reasoned opinion explicitly imposes procedural default, later decision will not be seen as silently disregarding the bar). The contemporaneous-objection rule is an adequate and independent state ground that procedurally bars federal habeas review of a petitioner's claims. Nichols v. Scott, 69 F.3d 1255, 1280 n. 48 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996). 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, 220 (5th Cir. 2001). Winston has failed to meet this burden; thus, this claim is procedurally barred from federal review.
This alternative holding does not defeat application of the procedural baron federal habeas corpus review. Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003); cf. Boyd v. Scott, 45 F.3d 876-879-81 (5th Cir. 1994) (holding claim not procedurally barred from federal review because state appellate court's opinion was interwoven with federal law and did not clearly express that its decision was based on state procedural grounds).
6. State Habeas Corpus Proceedings
Lastly, Winston contends that the state habeas court erred by not holding an evidentiary hearing on his state habeas corpus application. (Pet'r Mem. in Supp. at 11.) Errors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. Nichols, 69 F.3d at 1275. An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction because it "is an attack on a proceeding collateral to the detention and not the detention itself." Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838 (1987). Thus, this claim is not cognizable on federal habeas review. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527 U.S. 1056 (1999).
7. Summary
In sum, Winston is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Winston 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
Winston'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 November 12, 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 bane); 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 November 12, 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.