Opinion
CIVIL ACTION NO. 4:02-CV-994-Y.
March 31, 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 Erick DeShawn Edwards, TDCJ-ID #855581, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Robertson Unit in Abilene, Texas.
In the state courts, Edwards's first name was spelled "Eric." (Clerk R. at 3, 57.) In this court and in his pro se state court filings, Edwards spelled his first name as "Erick." ( Id. at 61, 63.) This difference is not material and has no effect on the merits of this case.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
On October 10, 1997, Edwards and a cohort entered a pawn shop, pointed a gun at the owner, and told him they were robbing him. (3 Rep. R. at 92, 94-98.) The owner dropped to the floor to get his hidden gun, and shots were exchanged as the robbers tried to flee. ( Id. at 98, 104-07.) The police arrested Edwards near the scene of the crime, but his partner was never identified or found. ( Id. at 55-56, 68-69.) On December 10, 1998, a jury found Edwards guilty of aggravated robbery with a deadly weapon, and the trial court sentenced him to 25 years' confinement. (Clerk R. at 57.)
The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Edwards v. State, No. 2-99-020-CR (Tex.App. — Fort Worth June 15, 2000, pet. ref'd) (not designated for publication). Edwards 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 Edwards, No. 53,045-01 (Tex.Crim.App. Sept. 25, 2002) (not designated for publication). Edwards 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 November 26, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Edwards raises four issues:
1. The trial court erred in not allowing him to testify during guilt-innocence.
2. The State withheld evidence from the defense.
3. Trial counsel was constitutionally ineffective at guilt-innocence and at punishment.
4. Appellate counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell argues that Edwards's claim of ineffective appellate counsel has not been exhausted and asserts that it has been procedurally defaulted; however, Cockrell believes that Edwards'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). Edwards argues that because the Court of Criminal Appeals did not conduct a full and fair hearing of his state habeas corpus applications, the statutory presumptions and standards of review do not apply to his case. (Pet'r Mem. in Supp. at 18.) But a full and fair hearing is nota precondition to according § 2254(e)(1)'s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)'s standards of review. Valdez v. Cockrell, 274 F.3d 941, 948-51 (5th Cir. 2001), cert. denied, 123 S.Ct. 106 (2002). Thus, the statute applies.
2. Testimonial Right
Edwards argues that, because there is no evidence in the record that he waived his right to testify and because no defensive evidence was offered, the trial court erred in not "offering" him the opportunity to testify at the guilt-innocence phase of trial. (Federal Pet. at 7; Pet'r Mem. in Supp. at 7-9.)
a. Procedural bar
Edwards did not raise this issue on appeal, but did raise it in his state habeas corpus application by arguing that his rights to a fair trial and due process under the United States Constitution were violated when the trial court did not offer him the right to testify. (State Habeas R. 15-17.) The trial court, in denying relief on this claim, stated that the issue was not raised on appeal as it should have been. (State Habeas R. at 130, 135.) The Court of Criminal Appeals denied the application on the trial court's findings. Cockrell now argues that Edwards's claim is procedurally defaulted based on the Court of Criminal Appeals' express and unambiguous finding that Edwards should have raised the claim on direct appeal. (Resp't Answer at 6.)
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). What defeats application of a procedural bar in this case is the reasoning behind the state courts' procedural-default holdings. In holding that Edwards had defaulted this claim, the state habeas court, and by implication the Court of Criminal Appeals, stated that the claim could not be raised for the first time in a post-conviction writ and should have been initially raised on appeal, relying on In re Sanchez and In re Banks. Both cases hold that errors based on statutory grounds, such as the improper exclusion of a veniremember under a state statute and a violation of the statutory Interstate Agreement on Detainers, are not cognizable in a post-conviction writ. Sanchez, 918 S.W.2d at 527; Banks, 769 S.W.2d at 540. These cases go on to explain that errors raising denials of constitutional rights are properly raised, even for the first time, in a post-conviction writ. Sanchez, 918 S.W.2d at 527; Banks, 769 S.W.2d at 540. Although Edwards relied on Texas statutory provisions in making his argument, his claim was additionally based on the United States Constitution. It would be erroneous to honor a presumption of procedural default on Edwards's constitutional argument where no such default existed. Sinclair v. Wainwright, 814 F.2d 1516, 1522 (11th Cir. 1987); Pedrero v. Wainwright, 590 F.2d 1383, 1390 (5th Cir.), cert. denied, 444 U.S. 943 (1979). Indeed, for the presumption of procedural default to apply, the procedural default must be clearly and correctly applied by the state courts. Sinclair 814 F.2d at 1522. Thus, it would be improper to apply a procedural bar in this case.
918 S.W.2d 526, 527 (Tex.Crim.App. 1996).
769 S.W.2d 539, 540 (Tex.Crim.App. 1989) (op. on reh'g).
b. Denied right to testify
Edwards claims that had the trial court allowed him to testify at guilt-innocence, he would have testified that he did not have a gun during the robbery. (Pet'r Mem. in Supp. at 9; State Habeas R. at 62.) Further, he states that counsel urged him not to testify at guilt-innocence, which upset him after the jury found him guilty. (State Habeas R. at 62.) In trial counsel's affidavit that she filed in response to Edwards's state habeas application, she stated that she had talked to Edwards about the risks involved with testifying at guilt-innocence and that he decided not to testify. (State Habeas R. at 109A.)
A criminal defendant has the constitutional right to testify in his own defense. Rock v. Arkansas, 483 U.S. 44, 51 (1987). However, nothing in the record shows that the trial court prevented Edwards from testifying. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (holding allegation unsupported by the record is conclusory and cannot support habeas corpus relief), indeed, the state courts credited counsel's averments and found that Edwards chose not to testify. This finding is presumed correct, and Edwards has offered no evidence to overcome that presumption.
3. Brady Violation
Edwards asserts that the State withheld exculpatory evidence — the results of the gunpowder-residue test and a hospital gown — his due-process rights. (Federal Pet. at 8; Pet'r Mem. in Supp. at 16-17.) He argues that this evidence would have shown that he did not have a gun during the offense. (Pet'r Mem. in Supp. at 17.) The state habeas court found that the State was not obligated to produce the gunpowder-residue test, that Edwards had not met his burden to show the evidence was favorable and material, and that Edwards could have acquired the evidence with reasonable diligence. (State Habeas R. at 133, 135.) The state courts did not address the hospital gown.
Apparently, after Edwards was arrested, he was taken to a hospital and given a gown to wear. (4 Rep. R. at 52, 72-76.) This is what he was wearing when his property was later confiscated at the jail. (Rep. R. at Def.'s Ex. 1.)
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, Edwards 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). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 684 (1985). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. at 678. Whether evidence must be produced and whether it is material under Brady is a mixed question of law and fact. Brown v. Cain, 104 F.3d 744, 750 (5th Cir.), cert. denied, 520 U.S. 1195 (1997).
Edwards has failed to overcome the deference that must be afforded to the state court findings. He has not rebutted the presumption of correctness in favor of the finding that Edwards could have obtained the gunpowder-residue test with reasonable diligence and that he has not shown that the evidence was exculpatory. Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir.), cert. denied, 527 U.S. 1056 (1999). The state courts' conclusion that the State had no obligation to produce the gunpowder-residue test is, thus, not an unreasonable application of clearly established federal law. Lucas v. Johnson, 132 F.3d 1069, 1082 (5th Cir. 1998); Brown, 104 F.3d at 749; May v. Collins, 904 F.2d 228, 231 (5th Cir. 1990), cert. denied, 498 U.S. 1055 (1991). Edwards has failed to make a substantial showing of the denial of a constitutional right on this issue.
Regarding the hospital gown, Edwards has failed to show that the evidence was exculpatory or material. Edwards was not wearing the hospital gown when he committed the offense (3 Rep. R. at 55, 72, 131); thus, it would not be probative on the issue of whether he discharged a gun at the pawn shop.
4. Ineffective Assistance of Trial 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.
Edwards's complaints about trial 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 courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d):
a. Guilt-innocence
Edwards asserts that trial counsel was constitutionally ineffective at the guilt innocence phase of trial because she:
1. did not investigate and present the defense that Edwards did not have a gun at the pawn shop;
2. did not allow him to testify in his defense;
3. did not investigate the gunshot-residue test or the hospital gown;
4. failed to pursue the fact that one of the jurors was sleeping during the trial; and
5. failed to object to the jury charge.
For the following reasons, Edwards 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.
Edwards's first three arguments regarding trial counsel's performance at guilt-innocence assert that counsel failed to pursue and present the only viable defense available to him — he did not have a gun at the time of the offense. Specifically, he argues that the gunpowder-residue test and hospital gown would have shown that he did not fire a gun during the robbery and that his testimony would have buttressed that fact. (Pet'r Mem. in Supp. at 11-13.) There is no evidence to indicate what the results of the gunpowder-residue test were or what the hospital gown would have shown. Counsel's decision not to pursue the test results or the hospital gown could have been a reasonable trial strategy: believing the gunpowder-residue test and gown would show Edwards had fired the gun, she could have decided not to pursue that line of investigation. In fact counsel argued to the jury that the absence of the residue test showed that Edwards had not fired the gun and that the confiscated white shirt, when the gunman was wearing a black shirt, raised reasonable doubt. (4 Rep. R. at 86-87.) Further, counsel averred that she advised Edwards not to testify because of the "risk," which was credited by the state courts. (State Habeas R. at 109A.) This court will not second-guess these strategic decisions. McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir. 1989).
Edwards asserts counsel was ineffective for failing to further pursue the fact that a juror was sleeping during the trial and preserve error for appeal on the issue. (Pet'r Mem. in Supp. at 13-14.) During the State's direct examination of a police officer, counsel approached the bench and told the court that "one of the jurors [is] going to sleep on us." The court replied that "they're awake now. Let's move." (3 Rep. R. at 194.) Edwards fails to overcome the presumption that counsel's decision to drop the matter — especially in light of the fact that the juror was not actually asleep and further probing might have antagonized the juror — was not a strategic decision. Edwards also does not show any prejudice arising from counsel's inaction.
Edwards contends that counsel was ineffective for failing to object to the jury charge because it allowed the jury to convict on the mens rea of either intentionally or knowingly. (Pet'r Mem. in Supp. at 14; Clerk R. at 51.) Based on the statutory definition of robbery, the culpable mental state the State was required to prove was either "intentionally or knowingly." TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2003). Any objection on this basis to the jury charge would have been meritless; thus, counsel cannot be found defective. See, e.g., Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (holding counsel not deficient for failing to make frivolous objection to correct statement regarding Texas law), cert. denied, 525 U.S. 1174 (1999); 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) (holding counsel not deficient for failing to make meritless argument).
b. Punishment
Edwards asserts that trial counsel was constitutionally ineffective at the punishment phase of trial because she failed to present seven character witnesses, which were available at trial, to testify that he is a good family man, a hard worker, a Christian, trustworthy, and of good character. (Pet'r Mem. in Supp. at 15; State Habeas R. at 64-68.) For the following reasons, Edwards 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.
In trial counsel's affidavit, she stated that, even though she repeatedly asked, Edwards gave her no names of potential witnesses that could or would testify in his behalf. (State Habeas R. at 109A.) The state habeas courts' finding that Edwards refused to cooperate in his defense is supported by the record ( Id. at 131, 135), and Edwards has failed to rebut the presumption of correctness of this finding with clear and convincing evidence. Counsel was not deficient. See Randle v. Scott, 43 F.3d 221, 225 (5th Cir.) (holding counsel not deficient when defendant told attorney to quit investigating prior conviction, even though it had been reversed, to expedite his guilty plea), cert. denied, 515 U.S. 1108 (1995); Bell v. Watkins, 692 F.2d 999, 1009 n. 11 (5th Cir. 1982) (holding counsel not deficient when defendant refused to provide a list of witnesses that would help his case), cert. denied, 464 U.S. 843 (1983); Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982) (same), cert. denied, 461 U.S. 910 (1983); Akridge v. Hopper, 545 F.2d 457, 459 (5th Cir.) (holding counsel not deficient where defendant claimed he could remember nothing of the crime and gave no indication of a credible defense), cert. denied, 431 U.S. 941 (1977).
5. Ineffective Assistance of Appellate Counsel
Finally, Edwards claims that appellate counsel was ineffective for failing to raise on appeal that trial counsel was ineffective and that the court erred in not letting him testify in his defense at guilt-innocence. (Pet'r Mem. in Supp. at 17-18.) Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 160 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
As Cockrell correctly points out, Edwards failed to raise these issues in either his petition for discretionary review on direct appeal or in his state application for habeas corpus relief. (Resp't Answer at 14.) Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, Edwards cannot return to the Texas courts to cure this deficiency. 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 v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Edwards has not given any credible explanation to excuse his default. Indeed, any problem with appellate counsel's performance was known to Kelley before he filed his state habeas corpus application. E.g., Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, this claim is unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
6. Summary
In sum, Edwards is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Edwards 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
Edwards'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 April 21, 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 Serv's. 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 April 21, 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.