Opinion
No. 3:02-CV-1957-G.
February 15, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
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 John Henry Money, Jr. is an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division. Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. Factual and Procedural History : On February 11, 1999, Money angrily accused his girlfriend, Shawn Franklin, of seeing another man. (3 R.R. at 10-12.) Money grabbed a machete, threatened to kill Franklin, and hit her in the nose. ( Id. at 12-17, 20.) Franklin calmed Money and, after he fell asleep, took her children out of the house and called the police. ( Id. at 23-24, 27.)
On January 26, 2000, a jury found Money guilty of aggravated assault and, because the conviction was enhanced by two prior felonies, assessed punishment at 60 years' confinement. (3 State Habeas R. at 93.) TEX. PENAL CODE ANN. §§ 12.42(b), 22.02(b) (Vernon Supp. 2004-05). The Fifth District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Money's pro se petition for discretionary review on May 30, 2001. Money v. State, No. 5-00-251-CR (Tex.App.-Dallas Jan. 2, 2001, pet. ref'd) (not designated for publication). On November 8, 2001, Money 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 Money, No. 12,647-03 (Tex.Crim.App. Apr. 24, 2002) (not designated for publication). Money filed his federal petition for writ of habeas corpus and supporting memorandum in the United States District Court for the Northern District of Texas, Dallas Division, on September 5, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
Money's two prior state habeas applications challenged his 1979 conviction for burglary of a habitation and his 1988 convictions for unauthorized use of a vehicle and were both denied without written order. Ex parte Money, Nos. 12,647-01 -02 (Tex.Crim.App. July 20, 1983 Aug. 23, 1995) (not designated for publication).
On October 2, 2002, the undersigned granted Money leave to file an amended petition. (Docket Entry No. 8.)
D. Issues : In his amended petition, Money raises the following issues:
1. trial counsel was constitutionally ineffective;
2. appellate counsel was constitutionally ineffective; and
3. The State illegally used Franklin's perjured testimony.E. Exhaustion : Dretke argues that one of Money's specific allegations attacking appellate counsel's performance has not been exhausted and asserts that it has been procedurally defaulted. See infra note 3. However, Dretke concedes that Money's remaining allegations have been properly exhausted.
II. STANDARD OF REVIEW
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) (en banc per curiam), 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).
III. PERJURED TESTIMONY
Money asserts that the State illegally used Franklin's perjured testimony. (Am. Federal Pet. at 7.) To run afoul of the Due Process Clause, a petitioner must show that the State knowingly presented materially false evidence to the jury or allowed untrue testimony to go uncorrected. Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied, 519 U.S. 995 (1996); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). To obtain relief, the petitioner must show that (1) the testimony was actually false, (2) the state knew it was false, and (3) the testimony was material. Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993). Money has not shown any of these requirements. There is nothing in the record that shows Franklin lied about the assault or that the State knew she was lying. Money's conclusory allegation is insufficient to support habeas corpus relief on this claim. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
IV. 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 that (1) 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) he was prejudiced in 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.
In this case, Money raised ineffective-assistance-of-counsel claims during state collateral review proceedings which the state habeas courts rejected. 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).
A. Trial Counsel
In his amended petition, Money tersely complains of trial counsel's performance:
[Money] initially was denied effective assistance of Counsel, by Counsel Jane Roden during his trial proceedings, as he will illustrate within his "Memorandum of Law" attached here to. Please see: [Money's] memo of Law. Pgs.
(Am. Federal Pet. at 6.) The undersigned granted Money leave to file an amended petition and specifically stated that the original petition and supporting memorandum would not be considered:
The Court notes that, although [Money] refers to a memorandum of law and two exhibits that he purports to attach to his amended petition, the Amended Petition has no such attachments. The Court thus grants [Money] thirty days from the date of this Order to file the exhibits and memorandum with the Court and serve the documents upon [Dretke]. If [Money] desires to rely upon his previously filed memorandum of law and exhibits attached thereto, he shall so inform the Court and [Dretke] within that same time period.
(Docket Entry No. 8 at 1.) Money never filed additional materials or notified this Court that he wanted to rely on his original memorandum and exhibits. Thus, the only petition this Court need consider is the amended petition, which did not include a supporting memorandum or exhibits. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam) (holding amended petition supercedes original complaint); Clark v. Tarrant County, Tex., 798 F.2d 736, 740 (5th Cir. 1986) (same). Because Money's amended petition fails to specify what rendered trial counsel's representation ineffective, his claim is insufficient to meet the Strickland standard and cannot result in habeas corpus relief. See Therrien v. Vose, 782 F.2d 1, 3 (1st Cir.) (holding ineffective-assistance-of-counsel claim fails without specific allegation of errors), cert. denied, 476 U.S. 1162 (1986); cf. Ross, 694 F.2d at 1011-12 (holding conclusory allegations are insufficient to support habeas corpus relief).
Even if the Court considered the original memorandum and exhibits, which raised the same claims raised in his state habeas corpus application, Money would still not be entitled to relief. Money claimed that trial counsel introduced certain portions of a taped conversation between the complainant and a defense investigator, which allowed the prosecution to introduce other portions of the tape containing reference to Money's criminal history. After considering trial counsel's affidavit regarding her strategy in introducing the tape, the state habeas courts made factual findings and concluded that trial counsel was not ineffective. (3 State Habeas R. at 97-98, 101.) These state court findings are entitled to a presumption of correctness which Money has not overcome. 28 U.S.C. § 2254(e)(1). Thus, Money is entitled to no relief on this claim.
B. Appellate Counsel
In his amended petition, Money also argues that appellate counsel was constitutionally ineffective because he failed to argue on appeal that (1) Money was actually innocent, (2) Franklin's testimony was perjurious, and (3) Money was denied a pretrial hearing. (Am. Federal Pet. at 6-7.) 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, Money must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Money must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id.
Dretke states that Money additionally argues that appellate counsel was ineffective for failing to argue on appeal that trial counsel was ineffective and contends that this claim is unexhausted and, thus, procedurally defaulted. (Resp't Answer at 11-12.) But this claim is not raised in Money's amended petition and will not be addressed.
Money first argues that counsel should have argued on appeal that he was actually innocent of the offense. Money cannot show any prejudice from this failure, even if deficient. Counsel argued on appeal that the evidence was factually insufficient to support Money's conviction, and the court of appeals rejected that claim. Money, No. 5-00-251-CR, slip op. at 2-4. In making this conclusion, the appellate court was necessarily holding the evidence legally sufficient under Jackson. Conner v. State, 67 S.W.3d 197, 198 (Tex.Crim.App. 2001). The Court of Criminal Appeals, by refusing Money's petition for discretionary review, implicitly reached the same result. Thus, Money's argument that there was no evidence he committed the crime was before the Fifth District Court of Appeals and the Court of Criminal Appeals.
To review the legal sufficiency of the evidence, a 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).
Money next asserts that appellate counsel should have argued on appeal that Franklin's testimony was perjurious. As discussed above, this claim is without merit. Thus, Money cannot satisfy the Strickland requirements. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); Cantu v. Collins, 967 F.2d 1006, 1017 (5th Cir. 1992), cert. denied, 509 U.S. 926 (1993); Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992).
Finally, Money contends that appellate counsel was ineffective for failing to argue that he was denied a pretrial hearing. Money fails to allege the purpose of a pretrial hearing or any prejudice that resulted from the failure to have a pretrial hearing. This conclusory allegation is insufficient to meet his burden of proof under the Strickland- Smith standard. Armstead v. Scott, 37 F.3d 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995); Ross, 694 F.2d at 1011-12.
Further, the state habeas courts found that appellate counsel had filed a brief that reflected "a thorough understanding of the facts and law" and concluded that he rendered effective assistance. (State Habeas R. at 98.) Money has not overcome the presumption of correctness of these determinations. 28 U.S.C. § 2254(e)(1). He is therefore entitled to no habeas relief on this claim.
V. SUMMARY
Money is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Money 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.
VI. EVIDENTIARY HEARING
Upon review of the pleadings filed and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary. RULES GOVERNING SECTION 2254 CASES 8(a).VII. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the request for habeas corpus relief brought under 28 U.S.C. § 2254.