Opinion
NO. 3-05-CV-0269-L.
September 22, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Mario Marcus Dominguez, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of aggravated assault against his girlfriend, Christy Anna Orona, and her former boyfriend, Chris Hilliard. Punishment was assessed at 15 years confinement in each case. Both convictions were affirmed on direct appeal and state collateral review. Dominguez v. State, Nos. 11-01-00033-CR 11-01-00034-CR, 2002 WL 32341853 (Tex.App.-Eastland, Jun. 27, 2002, pet. ref'd); Ex parte Dominguez, Nos. 60,733-01 60,733-02 (Tex.Crim.App. Jan. 26, 2005). Having exhausted his state remedies, petitioner now seeks federal habeas relief.
II.
Petitioner raises three broad issues in nine grounds for relief. Succinctly stated, petitioner complains that: (1) the trial court failed to conduct a competency hearing; (2) the prosecutor exercised her peremptory challenges in a discriminatory manner by striking all Hispanics from the jury; and (3) he received ineffective assistance of counsel at trial and on appeal.
Respondent correctly points out that all claims related to petitioner's conviction for assaulting Hilliard are barred by the AEDPA statute of limitations. See 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitations shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court."). Because petitioner did not file a petition for discretionary review with respect to his conviction for assaulting Hilliard, that conviction became final on July 29, 2002 — 30 days after the court of appeals rendered judgment. See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires). Yet petitioner did not seek post-conviction relief in either state or federal court until December 4, 2003 — more than one year later. Although petitioner is barred from attacking his conviction for assaulting Hilliard, respondent concedes that he may prosecute his claims with respect to the Orona assault conviction.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214 (1996). Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may grant habeas relief only if the state court adjudication:
(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). A state court decision is contrary to clearly established federal law "if the 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523; see also Pondexter v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003).
With respect to mixed questions of fact and law, a federal habeas court must give deference to state court findings unless they are "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, 121 S.Ct. 508 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
B.
Petitioner first contends that the trial court abused its discretion by failing to conduct a competency hearing sua sponte.
1.
Due process requires that a defendant be legally competent to stand trial. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). A defendant is competent if "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). State courts must employ procedures designed to protect against the trial of incompetent defendants. Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975); Pate, 86 S.Ct. at 842-43. In deciding whether a competency hearing is required, the trial court should consider: (1) any history of irrational behavior; (2) the bearing and demeanor of the defendant prior to trial; and (3) prior medical opinions. See Enriquez v. Procunier, 752 F.2d 111, 113 (5th Cir. 1984), cert. denied, 105 S.Ct. 2658 (1985); Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir.), cert. denied, 100 S.Ct. 487 (1979).2.
Petitioner argues that a competency hearing was required because he had been diagnosed with "major depression psychosis," he mutilated himself at the time of the offense, and he was in a "trance" during trial. However, the state court record shows only that petitioner reported depression and suicidal ideation to the Dallas County Jail medical staff and told doctors he had been diagnosed with major depression. ( See St. Hab. Tr. at 48-49). There is no objective medical evidence that petitioner suffered from "major depression psychosis" or any mental disorder that may have prevented him from consulting with his lawyer or assisting in his defense. To the contrary, after his initial psychiatric screening, the jail medical staff recommended only medication and counseling. ( Id. at 49). No mental health professional ever suggested a competency evaluation. ( Id.).
Nor did defense counsel believe that petitioner was incompetent to stand trial. In a sworn affidavit filed with the state habeas court, Donna Winfield stated that petitioner was oriented as to time and place, understood the serious nature of the charges against him, and was able to assist in his defense. (Supp. St. Hab. Tr. at 1). Winfield said "[t]here was absolutely no indication of lack of competency." ( Id.). A forensic psychiatrist who reviewed the medical records submitted by petitioner in support of his state writ agreed with Winfield. ( Id. at 2). After considering this evidence, the state court found "nothing in the trial record which could or should have alerted the trial judge that there was reason to suspect that applicant was not competent." (St. Hab. Tr. at 86-87). Petitioner has failed to rebut that finding by clear and convincing evidence. That petitioner self-reported symptoms of depression and mutilated himself after assaulting his girlfriend does not mean he lacked the ability to consult with his lawyer or understand the proceedings against him. This ground for relief is without merit and should be overruled.
C.
Next, petitioner argues that the prosecutor exercised his peremptory challenges in a discriminatory manner by striking all Hispanics from the jury. Respondent counters that this claim is procedurally barred from federal habeas review because counsel failed to object at trial.
1.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L. Ed.2d 824 (1982). Under Texas law, a party must make a timely and proper objection to preserve a claim for appellate review. See Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.), cert. denied, 112 S.Ct. 202 (1991). The objection must state "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]" TEX. R. APP. P. 33.1(a)(1)(A). This "contemporaneous objection" rule constitutes an adequate state procedural bar for purposes of federal habeas review. See Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.), cert. denied, 118 S.Ct. 1793 (1998).
2.
The state habeas court expressly ruled that "applicant forfeited this issue by failing to raise a `Batson' claim at trial and by failing to raise it on direct appeal." (St. Hab. Tr. at 94) (citations omitted). Consequently, petitioner is barred from litigating this claim in federal court. See Thomas v. Moore, 866 F.2d 803, 804 (5th Cir.), cert. denied, 110 S.Ct. 124 (1989) ("The evidentiary rule established in Batson does not enter the analysis of a defendant's equal protection claim unless a timely objection is made to the prosecutor's use of his peremptory challenges."); Cheatham v. Dretke, No. 3-02-CV-1547-H, 2005 WL 415440 at *6 (N.D. Tex. Feb. 17, 2005), rec. adopted, 2005 WL 550150 (N.D. Tex. Mar. 8, 2005) (federal court barred from addressing merits of Batson claim where state habeas court held that claim was procedurally defaulted).D.
The remainder of petitioner's claims involve his legal representation at trial and on appeal. Although his pleadings are less than a model of clarity, petitioner appears to argue that he received ineffective assistance of counsel at trial because his attorney: (1) failed to investigate his mental competency or pursue a potential insanity defense; (2) did not request the appointment of a medical expert; (3) failed to object or request a limiting instruction regarding hearsay testimony and prior inconsistent statements; (4) did not interview potential witnesses; (5) failed to object when the prosecutor used her peremptory challenges to strike all Hispanics from the jury; and (6) did not object when the prosecutor raised the issue of parole during closing argument.
1.
The Sixth Amendment to the United States Constitution guarantees a defendant reasonably effective assistance of counsel at all critical stages of a criminal proceeding. See Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). To prevail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the petitioner must demonstrate that the performance of his attorney fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. The Fifth Circuit has described that standard as "requiring that counsel research relevant facts and law, or make an informed decision that certain avenues will not be fruitful." United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005), quoting United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003). Second, the petitioner must prove that he was prejudiced by his attorney's substandard performance. Strickland, 104 S.Ct. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068; see also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. See Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. See Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
In three related arguments, petitioner criticizes his attorney for failing to investigate his competency to stand trial, not requesting the assistance of a mental health expert, and failing to pursue a possible insanity defense. The court previously determined that neither the trial court nor defense counsel had any reason to believe petitioner was incompetent. The same holds true with respect to a potential insanity defense. As the state habeas court noted:
At or about the time of the offenses, applicant was ". . . working pretty much nonstop." A week before the offenses applicant had completed and graduated from computer school. Applicant was able to testify about his daily life and his relationship to the two victims. Applicant was able to testify about the events surrounding and during the offenses. Applicant has failed to present any credible evidence that he was insane at the time of the offenses[.]
(St. Hab. Tr. at 88-89) (internal citations omitted). There simply was no evidence to suggest that petitioner was unaware of the consequences of his actions due to a severe mental disease or defect. Moreover, petitioner wanted to claim self-defense for assaulting Hilliard. ( See Supp. St. Hab. Tr. at 2). It would have been poor trial strategy for counsel to argue that petitioner was insane at the time of the offense, but had the requisite mental capacity to act in self-defense. See United States v. Duran, 884 F.Supp. 529, 532 (D.D.C. 1995), aff'd, 96 F.3d 1495 (1996) (noting that self-defense and insanity are inconsistent defensive theories). Under these circumstances, counsel had no basis for challenging petitioner's mental competency or presenting an insanity defense.
3.
Nor was counsel ineffective for failing to seek the appointment of an independent medical expert. According to petitioner, such an expert could have testified that the stab wounds sustained by Orona were self-inflicted and that petitioner's wounds were not superficial. The court initially observes that petitioner has not proffered the testimony of a medical expert. For that reason alone, this claim must fail. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot even begin to analyze claim of ineffective assistance of counsel without testimony of missing witness). In addition, Orona and petitioner both testified as to the nature of their injuries. Orona told the jury that she was so upset by the fight between petitioner and Hilliard that she slit her own throat with an x-acto knife. (SF-IV at 172-74). Petitioner testified that he tried to kill himself by cutting his neck and wrists after seeing Orona attempt suicide. ( Id. at 260). Because the nature of the wounds suffered by petitioner and the victims were not beyond the general knowledge of a lay jury, the state habeas court determined that there was no need for an expert medical witness. (St. Hab. Tr. at 90). Petitioner has failed to rebut that finding by clear and convincing evidence.
4.
Petitioner also complains that defense counsel did not object to certain hearsay evidence or request an appropriate limiting instruction from the court. A careful review of the record reveals that counsel objected multiple times to the testimony of Sandra Santos. On direct examination by the prosecutor, Santos was asked about the relationship between her daughter, Christy Orona, and Chris Hilliard. Defense counsel objected to this testimony as hearsay. The trial court sustained the objection and instructed the jury to disregard the question and answer. ( See SF-IV at 15). Counsel also objected when the prosecutor questioned Santos about the relationship between Orona and petitioner. That objection also was sustained. ( See id. at 20). The prosecutor then asked Santos about an event that occurred a few days before Orona and Hilliard were attacked by petitioner:
Q. [BY PROSECUTOR]: Do you remember the early morning hours [of March 30] around 12 o'clock, midnight or so of that day?
A. Yes, because I was laying down. I had been watching TV and I was off that next day, Friday, and I had been off that Thursday. And I had fallen to sleep on the sofa and I heard someone knocking at the door and I was like, well, you know, who is it. And then it was my daughter. It was Christy. And she was crying. She was saying that her and Mario —
( Id. at 21-22). Defense counsel objected to this testimony on hearsay grounds. ( Id. at 22). Before ruling on the objection, the court allowed the prosecutor to establish a predicate for a possible exception to the hearsay rule:
Q. [BY PROSECUTOR]: How did she appear physically and emotionally to you?
A. She was crying. She was upset that she had left Mario.
Q. Okay. And was she able to — did — how did she appear physically? Did she have any kind of marks or anything on her that she showed you?
A. Yes. She showed me right here where he had — he had scratched her.
* * * *
Q. And when you say she was upset and she was crying, was she crying about how she had received this scratch —
A. Yes.
Q. — to her body?
A. Yes. She was upset.
Q. And were you able to determine how recently this had just occurred to her between the time she came to your home and when she got this scratch? Was she able to tell you that?
A. Yes. It was that same night.
Q. Okay. Did it just happen recently then?
A. Yes. Right here the scratch that same night.
Q. And was she still suffering — was she still under the excitement and the drama of how she had just received this scratch when she talked to you?
A. Yes.
Q. And was she able to articulate to you how it happened and who did it?
A. Yes.
( Id. at 23-24). Based on this testimony, the trial court determined that any statements made by Orona to Santos were admissible as an excited utterance. Santos went on to testify about other statements made to her by Orona, including that Orona and petitioner had been fighting all night and that petitioner had choked her. ( See id. at 24-25). The judge also allowed Santos to testify about a conversation she had with her daughter shortly after the attack. ( See id. at 45-47, 52-54). According to Santos:
A statement is not hearsay if it relates to "a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." TEX. R. EVID. 803(2).
[Orona] said when they opened the door, that Mario was there at the door and that he maced Chris right away. And they were trying to hold the door open — I mean, they were trying to both close the door but she wasn't strong enough, and Chris was maced. So he wasn't able to really — he didn't really have any strength.
And so they ran — Chris ran into my son's bedroom, which is on the left-hand side from the living room. And he followed behind Chris. Mario immediately followed after Chris.
And my daughter could have went out the other side of the door but she felt like she couldn't leave Chris by himself because he was helpless.
And so then he, Mario said, You're trying to help him, Bitch. He said, Why are you trying to help him for. And she goes, Please, Mario. Just leave him alone. Leave him alone. If I know you want anyone I know it's me. Please leave him alone.
So she tried to run out to the sliding door in the back, but I had the — on my sliding door I have this stick there, so she wasn't able to get the stick off. And that's when he grabbed her and slit her throat.
Q. [BY PROSECUTOR]: So she's able to describe to you how she got her throat cut?
A. Yes. That it was Mario.
( Id. at 58). Although the trial court allowed this testimony, the judge sustained defense counsel's objection to photographs of Orona's bruises. ( Id. at 27-32). Counsel also made other objections throughout Santos' testimony. Some of these objections were sustained. ( See id. at 33-34, 38, 52). Others were not.
Petitioner also complains that counsel did not object when the prosecutor introduced a prior statement by Orona that petitioner had stabbed her in the neck. ( See SF-IV at 201; St. Exh. 44). However, Orona made the same statement to Santos. To the extent counsel had any grounds to object to this prior inconsistent statement, the failure to do so did not prejudice the outcome of the case.
It is clear from the record that defense counsel repeatedly objected in an effort to prevent the introduction of hearsay evidence. In those instances where counsel did not object, such a decision was sound trial strategy. The trial court already had determined that any statements made by Orona to Santos immediately preceding and after the attack were admissible as excited utterances. In light of that ruling, counsel would have risked alienating the judge and jury by making further hearsay objections. See Westley v. Johnson, 83 F.3d 714, 722 (5th Cir. 1996), cert. denied, 117 S.Ct. 773 (1997) (counsel not required to make futile objections).
5.
Next, petitioner contends that defense counsel failed to interview his mother, brother, sister, aunt, and a family friend about his "mental state, character, and behavior." ( See St. Hab. Tr. at 29). Of these witnesses, petitioner has proffered only the testimony of his mother, Kathleen Horton, who would have testified that petitioner was abused by his father and traumatized by several events during his childhood. ( Id. at 81). Petitioner does not explain how this testimony is relevant to the issues of guilt or self-defense. Although Horton may have been able to testify at the punishment phase of the trial, the court cannot say that petitioner was prejudiced by the failure to call this witness, especially in light of his 15-year sentence for two brutal and unprovoked assaults. The state habeas court found that petitioner "failed to demonstrate that any of the witnesses who he claims were not properly interviewed would have presented competent, relevant testimony or that the defense case was not properly investigated." ( Id. at 92). Nothing in the record rebuts that finding.
Petitioner also included a letter from his aunt, Carol Martin, as part of his state writ. However, Martin states only that she was willing to appear in court to support petitioner. ( See St. Hab. Tr. at 82).
The court notes that petitioner was originally charged with burglary of a habitation with the intent to commit aggravated assault, a first-degree felony that carried a potential life sentence. The 15-year sentence obtained through the efforts of defense counsel was far less than the 40-year plea bargain offered by the prosecutor before trial. ( See Supp. St. Hab. Tr. at 3).
6.
The other instances of ineffective assistance of counsel alleged by petitioner merit little discussion. Although petitioner claims that his attorney failed to object when the prosecutor struck all Hispanics from the jury, there is nothing in the record to show the ethnicity of the jury panel or how the prosecutor exercised his peremptory challenges. Without such evidence, the court cannot say that counsel was ineffective for failing to make a Batson objection.
Nor has petitioner shown that his attorney was ineffective for failing to object when the prosecutor raised the issue of parole during closing argument at the punishment phase of the trial. As required by Texas law, the trial court gave the jury a general parole instruction, but admonished them "not to consider the manner in which the parole law may be applied to this particular defendant." (St. App. Tr. at 149). See also TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a). The prosecutor merely emphasized that instruction when she asked the jury to give petitioner "the maximum time and consider the — all the law that's in here with respect to the parole laws and such as that." (SF-VI at 19). Defense counsel had no basis for objecting to the prosecutor's argument.
E.
Finally, petitioner complains that his appellate lawyer failed to consult with him and raised only two frivolous issues on appeal. "The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989); see also Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 3313-14, 77 L.Ed.2d 987 (1983). Instead, counsel is obligated only to raise and brief those issues that are believed to have the best chance of success. See Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003), cert. denied, 124 S.Ct. 1156 (2004); United States v. Williamson, 183 F.3d 458, 462-63 (5th Cir. 1999). In order to prove ineffective assistance of appellate counsel, a petitioner must show that the decision not to raise an issue on appeal fell below an objective standard of reasonableness. United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000), citing Strickland, 104 S.Ct. at 2064. This reasonableness standard requires counsel "to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful." Id., quoting Williamson, 183 F.3d at 462-63.
Petitioner appealed his conviction on two grounds: (1) the trial court improperly admitted an affidavit signed by Orona in support of her request for a protective order; and (2) the prosecutor impermissibly raised the issue of parole during closing argument. Both points of error were addressed by the court of appeals in a written opinion. Dominguez, 2002 WL 32341853. Although petitioner did not raise an ineffective assistance of counsel claim on direct appeal, such a claim is more appropriate for collateral review. See Thompson v. State, 9 S.W.3d 808, 813-14 n. 5 (Tex.Crim.App. 1999) (rarely will reviewing court be capable of making a fair evaluation of the merits of an ineffective assistance of counsel claim on direct appeal). Moreover, the state habeas court ultimately determined that petitioner received effective assistance of counsel at trial. There is no reason to believe that determination would have been different had the issue been raised on appeal. Nor has petitioner shown that the performance of his appellate counsel was constitutionally deficient in any other respect. This ground for relief is without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).