Opinion
No. 3-01-CV-0386-M
January 7, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Kenneth Wayne Rose, 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 theft over $20,000 and sentenced to 45 years confinement. His conviction and sentence were affirmed on direct appeal. Rose v. State, No. 05-97-02073-CR (Tex.App.-Dallas, Apr. 29, 1999, no pet.). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Rose, No. 47, 462-01 (Tex.Crim.App. Nov. 29, 2000). Petitioner then filed this action in federal court.
II.
Petitioner raises two broad issues in multiple grounds for relief. Succinctly stated, petitioner contends that: (1) the trial court unfairly commented on the presumption of innocence and his right not to testify; and (2) he received ineffective assistance of counsel.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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 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 of the United States] 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, 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 Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
In his first two grounds for relief, petitioner argues that the trial judge improperly commented on his right not to testify "thereby destroying [the] presumption of innocence." (Hab. Pet. at 3). At issue are certain statements made by the judge during voir dire. After detailing the charges against petitioner and explaining the presumption of innocence, the judge turned to the Fifth Amendment privilege against self-incrimination. He told the jury at the outset:
Along with the Sixth Amendment right to the presumption of innocence, I wonder what he was accused of doing as opposed to I wonder what he did, everybody, including me and yourself and Mr. Rose, has a Fifth Amendment right not to testify. A person who is charged with a criminal offense, the law says, the constitution says that you don't have to testify against yourself. That's a right that we all have.
If that happens, if a person elects to take that Fifth Amendment right, you can't hold that against them and I will instruct you that you can t if that were to happen.
(SF-Voir Dire at 27-28). The judge then offered several hypothetical explanations as to why a defendant may elect not to testify in his own defense. One situation, based on the judge's own experience as a defense attorney, involved a poorly educated defendant who badly wanted to testify at trial:
He was accused of a criminal offense and finds himself in trial and confronted with the dilemma do I testify or not, do I take the stand and explain what happened or do I take my Fifth Amendment right and decide not to testify and have the instruction not to hold that against me. He very much wanted to testify, very much wanted to take the stand and tell the jury his side of the story, but, after we broke for lunch, we had long discussions and I went over with him what I anticipated the prosecution's questions to be. I'd been there. I'd asked those questions. I had a feeling that I knew what the prosecutor was going to ask him. I told him that this is how it's going to come at you and this is how it is going to be posed and this is what you're going to have to deal with, a barrage of cross-examination, a prosecutor with twenty years of experience and five years of experience asking questions.
That's what lawyers do for a living, cross-examine people. I tried to explain to him that you are no match with a fourth-grade education to go toe to toe with this person and you need to consider that. He decided to listen to me, it was his choice, and not testify and it worked out okay. That's one reason. You can't go head to head or toe to toe with someone with that kind of experience.
( Id. at 30). Another hypothetical, again based on the judge's personal experience while in private practice, involved a strategic decision to put the state to its burden of proof:
At the close of this case that I'm talking about that I handled, I looked at my client and I said, "Listen, the State hasn't proven all eight elements or all seven elements. They're far short. If you take the stand and you testify, you're going to end up proving those for them. If you stay put and not say anything, I'm going to ask for an instructed verdict and this judge is going to grant it. I'd be very, very surprised if he didn't, so my suggestion to you is that we sit tight, ask for the instruction and we all go home. You don't need to testify. We've done everything we're supposed to do, show up. It's incumbent upon them to prove their case and they haven't done it, so I suggest to you to keep your mouth shut and we go from here." That may be another reason, the State hasn't proven their case.
( Id. at 31). At the conclusion of his voir dire examination, the judge admonished the jury not to speculate on the reasons why petitioner may elect not to testify in this case:
[T]he law says you can't speculate, that you can't sit and wonder why a person does not take the stand. If a person does not take the stand, I'm going to instruct you that you can't hold that against them by law because we don't know what the reason is.
( Id. at 32).
Without citing any authority, petitioner complains that the remarks made by the trial judge violated the presumption of innocence and his privilege against self-incrimination. The court disagrees. Nothing in the record suggests that "the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Rocha, 916 F.2d 219, 232 (5th Cir. 1990), cert. denied, 111 S.Ct. 2057 (1991), citing Davis v. United States, 357 F.2d 438, 441 (5th Cir.), cert. denied, 87 S.Ct. 284 (1966). To the contrary, the trial judge attempted to offer logical explanations as to why a defendant may elect not to testify at trial, thereby putting the presumption of innocence and the privilege against self-incrimination in context for prospective jurors. Petitioner has failed to show that these remarks, viewed in their entirety, violated his constitutional rights. These grounds for relief are without merit and should be overruled.
C.
Petitioner further contends that he received ineffective assistance of counsel because his attorney: (1) failed to object to evidence of extraneous drug offenses; (2) elicited testimony about his prior incarceration; and (3) failed to request a jury instruction on the lesser included offense of unauthorized use of a motor vehicle and a viable "mistake of fact" defense.
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 first must 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.
In two related arguments, petitioner criticizes his lawyer for failing to object to evidence of extraneous drug offenses and for eliciting testimony about his prior incarceration. At trial, Morris Dale George, a witness for the prosecution, testified that he drove a company vehicle to an Oak Cliff gas station on the evening of November 16, 1996 to buy heroin from petitioner. (SF-II 50-51). George said that he had purchased drugs from petitioner approximately 20-25 times over the years. ( Id. at 50). Petitioner and George left the gas station and went to a nearby Texaco convenience store so petitioner could call his supplier. George exited the vehicle to buy cigarettes and visit the restroom. When he returned, petitioner and the car were gone. ( Id. at 53). Petitioner was found in possession of the vehicle five months later and was charged with theft.
Not only did defense counsel fail to object to testimony regarding petitioner's extraneous drug activities, he asked George on cross-examination whether he met petitioner in prison. ( Id. at 60). This curious trial strategy was explained by petitioner's trial counsel, Rick Harrison, in an affidavit submitted to the state habeas court. According to Harrison:
Counsel did file a pretrial motion requesting a hearing outside the presence of the jury "before any evidence of extraneous transactions or evidence of other crimes, wrongs, or acts allegedly committed by the Defendant, or reputation testimony, is offered by the State. . ." (St. App. Tr. 9). Although this motion was granted by the trial court, defense counsel did not request a sub rosa hearing before George testified about petitioner's drug activities.
Mr. Rose contended that Mr. George bought dope from him and they had met in prison. He said that George owed him money for that he had fronted him, so George let him borrow the [car]. He stated that workers at the Texaco would know him and a video at the station would show it did not happen like George said it did. Ther[e] were no other witnesses t[o] the offense. My investigator went to the Texaco and took pictures of the station. No one at the station knew Mr. Rose. There was not a video from the night the [car] was taken. Mr. Rose was advised of this, but still would not take [the] plea bargain. He told me he wanted to bring out the facts of the drug buys and where he met Mr. George. I advise[d] him that the prosecutor was aware of the drug transactions through conversations with Mr. George. I advised him of the pros and cons of that testimony before a jury, especially in light of the fact that he did not want to testify. He maintained his position.
(St. Hab. Tr. 39) (emphasis added). The state court found that "Mr. Harrison is a trustworthy individual and that the statements made by him in his affidavit are worthy of belief." ( Id. at 36). Petitioner has failed to offer any evidence, much less clear and convincing evidence, to rebut this finding. Counsel did not object to evidence of extraneous drug transactions and inquired whether George had met petitioner in prison because his client instructed him to do so after being advised of the potential ramifications of such testimony. These grounds are without merit and should be overruled.
3.
Finally, petitioner complains that his attorney failed to request a jury instruction on the lesser included offense of unauthorized use of a motor vehicle and a viable "mistake of fact" defense. Under Texas law, a jury charge on a lesser included offense is proper "where the charged greater offense requires the jury to find a disputed element which is not required for conviction of the lesser-included offense." Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981) (on motion for r'hrg), quoting Sansome v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). However, "there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense." Id. Theft and unauthorized use of a motor vehicle have identical elements, "except that in theft there is the additional element of an intent to deprive the owner of the property." Neely v. State, 571 S.W.2d 926, 928 (Tex.Crim.App. 1978). But cf. United States v. Lee, 310 F.3d 787, 791 (5th Cir. 2002) (suggesting that Texas law requires an examination of all facts to determine whether unauthorized use of a motor vehicle is a lesser included offense of theft under the particular circumstances of each case). Contrary to petitioner's conclusory assertions, nothing in the record suggests that petitioner did not intend to deprive the owner of his property. In fact, the evidence shows that petitioner drove away in George's car without his permission and kept the vehicle for five months. Under these circumstances, it would have been futile for counsel to request a jury instruction on unauthorized use of a motor vehicle.
Although petitioner raised these grounds in his state habeas petition, they were not addressed by the trial court in its findings of fact and conclusions of law. (St. Hab. Tr. 34-38). Nor did trial counsel explain why he failed to request these jury instructions in his affidavit. ( Id. at 39).
A person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property." TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2002). An appropriation of property is "unlawful" if it is without the effective consent of the owner. Id. § 31.03(b). A person commits the offense of unauthorized use of a vehicle "if he intentionally or knowingly operates another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner." Id. § 31.07(a).
Nor was counsel ineffective for failing to request a "mistake of fact" instruction. In order to justify such an instruction, there must be some evidence in the record that petitioner "through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." TEX. PENAL CODE ANN. § 8.02(a) (Vernon 1994). Petitioner argues that there is some evidence to support his belief that he had permission to take George's vehicle because, on a prior occasion, George allowed petitioner to borrow one of his other trucks to drive to the store. (SF-II 56). However, the mere fact that George let petitioner drive one of his other trucks on some prior occasion for a specific, limited purpose does not give rise to a reasonable belief that petitioner could take another vehicle at any time for any purpose without asking George for permission. There simply was no basis for counsel to request a "mistake of fact" instruction. These grounds for relief are without merit and should be overruled.
Petitioner also relies on the testimony of Dallas Police Officer Ronald M. Hubner at a sub rosa hearing held outside the presence of the jury. At the time of his arrest, petitioner told Hubner that he had gotten the vehicle from "some other white dude," a friend of his. (SF-II 117). Defense counsel attempted to elicit the same testimony during his case-in-chief to explain how petitioner obtained possession of the vehicle. ( Id. at 135). Upon timely objection by the state, the trial court excluded the evidence on hearsay grounds. ( Id. at 135-36).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.