Opinion
NO. 3-03-CV-0011-D
April 1, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Dennis Charles Maki, 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 sexual assault of a child and sentenced to 20 years confinement. His conviction and sentence were affirmed on direct appeal. Maki v. State, No. 05-00-00165-CR (Tex.App. — Dallas, May 24, 2001, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex Parte Maki, No. 53,032-02 (Tex.Crim.App. Nov. 20, 2002). Petitioner then filed this action in federal court.
II.
Petitioner raises four broad issues in 43 grounds for relief. Succinctly stated, petitioner contends that: (1) he did not receive a fair trial; (2) the prosecutor engaged in numerous acts of misconduct; (3) the trial judge was biased against him; and (4) he received ineffective assistance of counsel.
The form habeas petition filed by petitioner contains only three grounds: (1) prosecutorial misconduct; (2) judicial abuse of discretion; and (3) ineffective assistance of counsel. ( See Hab. Pet. at 7-8). However, 43 grounds for relief are listed in a detailed memorandum attached to the habeas petition. (Pet. Mem. Br. at 1-5).
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: (1) the state court decision 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) the state court decision 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)(1) (2). 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 Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), pet. for cert. filed (Jan. 8, 2004) (No. 03-8365). 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, 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous-the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
B.
Petitioner contends that he did not receive a fair trial because of improper rulings made by the trial judge and various constitutional errors which led to his conviction. Although his pleadings are less than a model of clarity, it appears that the gravamen of petitioner's claim is that: (1) he did not receive a hearing prior to indictment; (2) the trial judge replaced his court-appointed lawyer due to a conflict of interest without giving petitioner an opportunity to waive the conflict; (3) the arrest warrant contained false information; (4) he was not allowed to attend a hearing on the admissibility of extraneous offenses or participate in the in camera review of confidential CPS documents; (5) he was denied the right to cross-examine certain witnesses; (6) the trial court refused to appoint a medical expert to examine the complainant; and (7) the complainant and his parents falsely testified that petitioner lived with them at various times from 1994 to 1996.
The court declines petitioner's invitation to comb the record in search of additional grounds for relief. ( See Pet. Mem. at 1). Only those claims raised in the pleadings and presented to the state court in a procedurally correct manner will be considered on federal habeas review.
1.
Federal habeas relief is only available to correct errors of constitutional dimension. 28 U.S.C. § 2254(a); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 104 S.Ct. 2367 (1984). State law issues, such as improper evidentiary rulings and the misapplication of state procedural rules, are not cognizable in a federal habeas proceeding unless the rulings were "so extreme as to result in a denial of a constitutionally fair [trial]." Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999), cert. denied, 120 S.Ct. 1437 (2000). Even the erroneous admission of prejudicial evidence does not justify habeas relief "unless the evidence played a `crucial, critical, and highly significant' role in the [verdict]." Id., quoting Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 119 S.Ct. 1768 (1999).2.
The court initially observes that many of these claims are either legally or factually frivolous. A defendant has no federal constitutional right to a pre-indictment hearing or to keep a court-appointed lawyer who has a conflict of interest. See Harris v. Estelle, 487 F.2d 1293, 1296(5th Cir. 1973), citing Lem Woon v. Oregon, 229 U.S. 586, 590, 33 S.Ct. 783, 784, 57 L.Ed. 1340 (1913) (no federal constitutional right to preliminary hearing); United States v. Kitchen, 592 F.2d 900, 903 (5th Cir.), cert. denied, 100 S.Ct. 86 (1979), citing Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978) ("A defendant's right to counsel of his choice is not absolute and must yield to the higher interest of the effective administration of the courts."). Nor is a claim of false arrest based on an invalid warrant, standing alone, cognizable in a federal habeas proceeding. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995), citing Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed.2d 541 (1952). Similarly, petitioner was not denied the right to cross-examine the complainant's aunt and uncle, neither of whom testified at trial. The state was under no obligation to call these witnesses during its case-in-chief, even if their testimony was favorable to the defense. United States v. Garza, 165 F.3d 312, 315 (5th Cir.), cert. denied, 120 S.Ct. 502 (1999) (government is under no obligation to make case for defendant). These grounds for relief should be summarily overruled.
Petitioner's first lawyer, David Pickett, was removed from the case because his wife sat on the grand jury that indicted petitioner. Thereafter, the court appointed David Pire as substitute counsel.
Petitioner further contends that the trial court should have appointed an independent medical expert to examine the complainant for evidence of sexual assault. Although petitioner surmises that such an examination might have revealed the absence of anal penetration, there is no evidence to support this speculative assertion. To the contrary, petitioner did not request a physical examination by a court-appointed expert until November 1999 — more than three years after the complainant was allegedly raped by petitioner. It is highly unlikely that the results of this examination would have yielded beneficial evidence, much less affected the outcome of the trial. Moreover, petitioner fails to cite any federal precedent which allows a defendant to compel the physical examination of a sexual assault victim. This ground for relief is without merit and should be overruled.
Texas law prohibits a court from ordering a sexual assault victim to submit to a physical examination. See State ex. rel. Wade v. Stephens, 724 S.W.2d 141, 143-44 (Tex.App.-Dallas 1987, no writ).
Next, petitioner complains that he was not allowed to attend a hearing on the admissibility of extraneous offenses. The record shows that this issue was discussed outside the presence of the jury immediately before the first witness testified. (SF-III at 3-4). Although it is not apparent whether petitioner was present for this discussion, his attorney participated in the hearing and objected to any use of extraneous offense evidence. ( Id. at 4). Even if petitioner was improperly excluded from this hearing, he has failed to show that his presence would have affected the outcome of the trial. See Corwin v. Johnson, 150 F.3d 467, 473-74 (5th Cir.), cert. denied, 119 S.Ct. 613 (1998), citing United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (the "presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only").
Nor was petitioner entitled to participate in the in camera review of confidential documents produced by Child Protective Services ("CPS"). Evidently, petitioner believes that the trial court may have withheld exculpatory evidence contained in some of those documents. However, his suspicions are not supported by the record. On direct appeal, the appellate court reviewed the CPS records and confirmed that "[t]he trial court provided appellant with the only evidence contained within the records that could be construed as exculpatory." Maki, No. 05-00-00165-CR, op. at 5. Petitioner has not shown that this decision is unreasonable in light of the evidence presented in the state court proceeding.
CPS records are generally confidential and protected from disclosure. See TEX. FAM. CODE ANN. § 261.201 (Vernon Supp. 2001).
In four related grounds, petitioner maintains that the complainant and his parents falsely testified that petitioner lived with them in Balch Springs, Texas from September 1994 until April 1996 and visited their home over the Christmas holidays in 1996 or 1997. According to petitioner, this testimony is refuted by probation records and other evidence showing that he resided in Richardson, Texas until July 1995 and spent Christmas 1996 in jail. Significantly, petitioner does not deny that he lived with the complainant and his family during the time of the alleged sexual assaults. At most, he disagrees with the precise dates he resided with the family at their Balch Springs home. These discrepancies were brought out by defense counsel on cross-examination and in closing argument. (See SF-III at 145, 177, 185-89; SF-IV at 55-56). The fact that the complainant and his parents may have been mistaken as to when petitioner moved in or came back to visit does not mean that they lied. These grounds for relief are without merit and should be overruled.
The indictment alleges that the sexual assaults occurred "on or about the 1st day of April, A.D., 1996." (SF-II at 116-17).
C.
Petitioner further alleges that his conviction was tainted by multiple instances of prosecutorial misconduct. In particular, petitioner contends that the prosecutor: (1) failed to properly investigate the case; (2) withheld exculpatory evidence; (3) used false testimony to obtain a conviction; and (4) made improper comments during closing argument.
1.
Prosecutorial misconduct rarely justifies federal habeas relief. A petitioner must show that the actions of the prosecutor were "so pronounced and persistent that it permeates the entire atmosphere of trial . . . and casts serious doubt upon the correctness of the jury's verdict." United States v. Wallace, 32 F.3d 921, 926 (5th Cir. 1994), quoting United States v. Stewart, 879 F.2d 1268, 1271 (5th Cir.), cert. denied, 110 S.Ct. 256 (1989), and United States v. Carter, 953 F.2d 1449, 1457 (5th Cir.), cert. denied, 112 S.Ct. 2980 (1992). Stated differently, a petitioner must show that the misconduct was so prejudicial that it deprived him of a fair trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 642-643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Kirkpatrick v. Blackburn, 111 F.2d 272, 281 (5th Cir. 1985), cert. denied, 106 S.Ct. 2907 (1986). A trial is fundamentally unfair if the petitioner would not have been convicted but for the prosecutor's persistent and improper actions. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); Rushing v. Butler, 868 F.2d 800, 807 (5th Cir. 1989). This determination must be made in the context of the entire trial. Kirkpatrick, 777 F.2d at 281; Cobb v. Wainwright, 609 F.2d 754, 755 n. 1 (5th Cir.), cert. denied, 100 S.Ct. 2991 (1980).
2.
Most of these claims should be summarily rejected. Contrary to petitioner's belief, a prosecutor has no duty "to conduct a defendant's investigation or to make a defendant's case for him." Garza, 165 F.3d at 315; see also United States v. Marrero, 904 F.2d 251, 261 (5th Cir.), cert. denied, 111 S.Ct. 561 (1990). Nor has petitioner identified any exculpatory evidence withheld by the prosecution. Hughes v. Johnson, 191 F.3d 607, 629-30 (5th Cir. 1999), cert. denied, 120 S.Ct. 1003 (2000) (speculative and conclusory allegation that prosecutor withheld exculpatory evidence will not support claim for habeas relief). Furthermore, as previously discussed, the fact that the complainant and his parents disagreed as to when petitioner moved into their house and came back to visit them does not mean their testimony was false. See United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989) (contradictory testimony, standing alone, is not tantamount to perjury).
To the extent petitioner maintains the prosecutor should have acknowledged discrepancies regarding the dates he lived with the complainant, such evidence was known to petitioner. See Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 115 S.Ct. 959 (1995) (prosecutor not required to disclose evidence available to reasonably diligent defendant).
The only aspect of this claim that warrants more than a cursory analysis involves certain remarks made by the prosecutor during closing argument. After the trial court instructed the jury not to speculate about matters outside the charge, the prosecutor asked the jury:
How do you expect a child of this age to act? What do you expect for him to do? First of all, think about this. What motive would that child have to come and say these things? What motive would he have? If he's getting kicked out of school, why not have said, "Well, the teacher did it, or some people in school did it, or some person I didn't like did it?" Why would he say Dennis Maki did it? Because Dennis Maki did it.
* * *
How do you think-do you think this is fun that he has to get up here and admit this type of stuff? Ladies and gentlemen, I'm not telling you anything-I mean, use your common sense and what you know about children and what you know about adults. And what does a family have to come in here? What motive do they have? By all accounts, everything was fine. He was paying his rent. They were getting along great. He was even seeing them after he moved out until this came forward.
What-what motive do they have? And, ladies and gentlemen, think back to the time period here. Where does that child get that sexual knowledge? Where does he get it? He is older now, and that's why we need to remember how old he was at the time. But where do you get this stuff about cucumbers? Did you even know about anal sex, or-or sticking penises in your anus when you were that age? Did you even know about that? Where does he get this sexual knowledge?
(SF-IV at 58-69). Assuming arguendo that the prosecutor invited the jury to speculate about matters outside the record, petitioner has not shown that his isolated argument deprived him of a fair trial. See Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935) (habeas petitioner must show that he would not have been convicted but for prosecutor's "pronounced and persistent" remarks). These grounds for relief are without merit and should be overruled.
Petitioner also alludes to other improper comments made by the prosecutor, including "instruct[ing] the jury on approximately 28 occasions to believe the defendant guilty" and "escorting the jury away from their duty to evaluate the evidence and determine whether the state has `proven' their case." (Pet. Mem. at 19). The court has carefully reviewed the prosecutor's entire closing argument and cannot find anything manifestly improper or inherently prejudicial about her remarks.
D.
Petitioner also criticizes the trial judge for being partial to the prosecution and biased against him for political reasons. At the time petitioner was arrested in Michigan, then-Governor George W. Bush was a candidate for President of the United States. Governor Bush signed the extradition warrant that brought petitioner to Texas for trial. Apparently, petitioner believes that the trial judge refused to quash a defective arrest warrant to spare the governor the embarrassment of defending against yet another attack on the "credibility of the jurisprudence within the Texas Court System." (Pet. Mem. at 4). Petitioner attempts to bolster his paranoid suspicions by pointing out that Governor Bush appointed the judge's wife to a state district judgeship sometime prior to his trial. These facts lead petitioner to conclude that the trial judge was politically indebted to the governor and should have recused himself.
This claim is patently frivolous. There is absolutely no evidence in the record that the trial judge was biased against petitioner in any way. To the contrary, it appears that the judge conducted the proceedings without animus or hostility toward any witness, party, or counsel. The fact that the judge overruled many of petitioner's objections and sustained those made by the prosecutor does not reveal "such a high degree of favoritism or antagonism as to make fair judgment impossible." West v. Johnson, 92 F.3d 1385, 1411 n. 47 (5th Cir.), cert. denied, 117 S.Ct. 1847 (1997). See also Liteky v. United States, 510 U.S. 540, 556, 114 S.Ct. 1147, 1158, 127 L.Ed.2d 474 (1994) (judicial rulings, routine trial administration efforts, and ordinary admonishments to counsel and witnesses are insufficient to support claim of judicial bias).
E.
In 12 grounds for relief, petitioner contends that he received ineffective assistance of counsel at trial and on appeal. Among the charges leveled against trial counsel are: (1) his failure to impeach the complainant with probation records showing that petitioner lived at a different address during the time of the alleged sexual assaults; (2) his failure to object to the testimony of a psychiatrist who examined petitioner pursuant to a court order without advising him of his Fifth Amendment rights; (3) his failure to call the complainant's aunt and uncle as witnesses; and (4) his refusal to investigate the complainant's motives for accusing petitioner of sexual assault. Petitioner also criticizes his appellate lawyer for failing to challenge the sufficiency of the evidence and research the record for additional meritorious claims.
1.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a 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). Petitioner must first demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings 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. 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. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
Petitioner contends that his attorney failed to impeach the complainant with probation records showing that petitioner lived in Richardson, Texas from August 1994 until October 1995. At trial, the complainant testified that petitioner began molesting him "at some point" after coming to live with his family at their Balch Springs home. (SF-III at 19). Although the complainant's mother and father said that petitioner lived with them for approximately 20 months from August or September 1994 until April 1996, the complainant offered no such testimony. ( See id. at 49-50, 187-89; SF-IV at 19-20). Instead, the complainant estimated that petitioner lived with his family for about a year. (SF-III at 161-62). Thus, counsel had no basis to impeach the complainant with the probation records.
Moreover, this evidence was before the jury. One of the witnesses called by defense counsel was Jay Davis, petitioner's probation officer. Davis confirmed that he visited petitioner at his self-reported address in Richardson, Texas on multiple occasions from August 1994 until October 1995. ( Id. at 192-99). However, as previously discussed, the location of petitioner's primary residence during that time period was inconsequential. Petitioner has never denied that he lived with the complainant and his family on or about April 1, 1996, the date alleged in the indictment. To the extent counsel should have impeached any of the state's witnesses with petitioner's probation records, his failure to do so did not affect the outcome of the trial.
Petitioner also complains that his attorney failed to object to the testimony of a court-appointed psychiatrist. In his brief, petitioner alleges that he was interviewed by a Dr. Grigson for about 10 minutes sometime prior to trial. However, counsel never informed petitioner that the examination was the result of a motion filed by the state. Nor did counsel advise petitioner to invoke his Fifth Amendment right against self-incrimination. Instead, petitioner was simply told "to be honest with this man." ( See Pet. Mem. at 12). While acknowledging that Dr. Grigson did not testify at trial, petitioner suspects that evidence obtained as a result of his examination may have been offered at some pretrial proceeding he was not allowed to attend. ( Id. at 13). Such speculative assertions are insufficient to support a claim for habeas relief. See Lafon v. Dretke, 2003 WL 22768664 at *6 (N.D. Tex. Nov. 18, 2003), adopted by 2003 WL 22840022 (N.D. Tex. Nov. 24, 2003), citing Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
In two related grounds, petitioner criticizes his lawyer for failing to subpoena the complainant's aunt and uncle and for not investigating the complainant's motives for accusing him of sexual assault. Petitioner theorizes that the complainant lied to his family "in fear of getting the paddling from his step-father for calling sex phone-lines and watching his parents sex videos." (Pet. Mem. at 14). Although petitioner asked his attorney to investigate this theory, counsel refused. Petitioner now believes that he would have been acquitted had his lawyer questioned the complainant's aunt and uncle and pursued this defensive theory at trial. The court disagrees. First, petitioner has not proffered the testimony of the missing witnesses. Without this evidence, the court cannot begin to analyze a claim of ineffective assistance of counsel. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). Second, counsel attempted to show that the complainant lied about being molested by petitioner. In support of this theory, several witnesses testified that the complainant was not always truthful. (SF-III at 118-29, 130-31). Counsel also presented evidence that the complainant first reported the alleged sexual assault shortly after being expelled from school, thereby suggesting a motive to lie. ( Id. at 137-40, 155-56). Although petitioner may have wanted to pursue a different defense, he has failed to overcome the presumption that the theory advanced by his attorney was "sound trial strategy."
At a hearing conducted outside the presence of the jury before closing arguments, petitioner acknowledged that his attorney tried to get several other witnesses to testify, "but they were unavailable." (SF-IV at 35). Although the witnesses were not identified, petitioner agreed with counsel that they "wouldn't have provided anything that we didn't already [have]." ( Id.).
3.
Finally, petitioner contends that he received ineffective assistance of counsel on appeal because his lawyer failed to challenge the sufficiency of the evidence and research the record for additional meritorious claims. "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, 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, 463 (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.
Here, appellate counsel raised five nonfrivolous issues in a well-researched brief. Although counsel did not challenge the sufficiency of the evidence, petitioner fails to explain how the evidence was legally or factually insufficient to support his conviction. Nor has petitioner shown that his conviction would have been reversed had counsel appealed on any of the 43 grounds presented in his federal writ. Petitioner's unsupported and conclusory assertions do not merit federal habeas relief. See Saunders v. Cockrell, 2002 WL 31156719 at *7 (N.D. Tex. Sept. 24, 2002), citing Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000).
Counsel focused his appeal on certain evidentiary rulings made by the trial court and requested further review of the documents produced by CPS to determine whether they contained any exculpatory evidence.
RECOMMENDATION
Petitioner's application for a writ of habeas corpus should be denied.