Opinion
No. 3:01-CV-2204-H.
August 19, 2004.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 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 habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural and Factual History : On December 1, 1988, petitioner shot and killed his ex-wife and her boyfriend James Hughes (Hughes). See Sims v. State, No. 05-96-01652-CR, 2000 WL 567069, at *1 (Tex.App.-Dallas May 9, 2000, pet. ref'd) (companion case for the ex-wife's murder which sets forth appropriate summary of facts, hereinafter referred to as Sims I). The State thereafter indicted petitioner for both killings. See TR94 at 2; TR88 at 3. After guilty pleas to both murders, petitioner successfully overturned the state judgments. He ultimately proceeded to separate trials for each murder. See Sims I; Sims v. State, No. 05-96-01962-CR, 2000 WL 175107 (Tex.App.-Dallas Feb. 16, 2000, pet. ref'd) (appeal from conviction for the murder of Hughes, hereinafter Sims II).
Although petitioner does not challenge his conviction for the murder of his ex-wife in this case, that conviction stems from the same set of facts as the challenged conviction now before the Court. Because the facts are so intertwined, the Court at times discusses both convictions but considers only the instant conviction.
"TR94" refers to the state trial record in Cause No. F94-00946-WL — the state action that deals with the murder of Hughes.
"TR-88" refers to the state trial record in Cause No. F88-91352-KL — the state case that dealt with the murder of petitioner's ex-wife.
The prior convictions were overturned on a state habeas application because the trial court had ordered them to run consecutively in violation of a state statute. See Ex parte Sims, 868 S.W.2d 803, 803-05 (Tex.Crim.App. 1993) ( en banc), overruled in part by Ex parte McJunkins, 954 S.W.2d 39 (Tex.Crim.App. 1997).
Counsel represented petitioner during the trial for the murder of his ex-wife, but petitioner proceeded pro se during the trial for the murder of her boyfriend. See TR88 at 64; TR94 at 56.
On October 9, 1996, a jury found petitioner guilty of murdering his ex-wife and sentenced him to ninety-nine years imprisonment. TR88 at 64 (Judgment). On November 13, 1996, a jury found petitioner guilty of murdering James Hughes and sentenced him to life imprisonment. TR94 at 56 (Judgment). The court of appeals affirmed both convictions, and the Court of Criminal Appeals refused his petitions for discretionary review. See Sims I and Sims II. Without written order, the Court of Criminal Appeals also denied petitioner's state application for habeas corpus relief that challenged his conviction for Hughes's murder. See Ex parte Sims, No. 23,100-03, slip op. at 1 (Tex.Crim.App. July 11, 2001).
Petitioner filed the instant federal writ of habeas corpus on October 30, 2001, to challenge his conviction for murdering Hughes. ( See Pet. at 9.) Respondent filed an answer on March 20, 2002. ( See Answer at 1.) On March 28, 2002, the Court received a "Motion for Court Order" from petitioner, which the Court has construed as petitioner's traverse to respondent's answer.
D. Substantive Issues : Petitioner asserts that he is being held unlawfully by respondent on the following fourteen grounds:
1. the trial court had no jurisdiction because petitioner had sought to remove the state criminal action to federal court;
2. the State suppressed favorable evidence;
3. the State suborned perjured testimony and failed to correct it;
4. the State forced him to waive his right to counsel;
5. his conviction was obtained in violation of double jeopardy, collateral estoppel, res judicata, and claim preclusion;
6. the State knowingly used an "imposter witness" during punishment;
7. the State illegally "stacked" his sentence and required him to serve his sentence in installments;
8. he received ineffective assistance of counsel on appeal in the following respects:
a. counsel withdrew without notice;
b. counsel "stole" documents from petitioner; and
c. counsel failed to consult with him and raise certain issues on appeal.
9. he was denied due process;
10. the State "stole" his trial clothing to impair his presumption of innocence;
11. he was denied equal protection to prevent him from obtaining due process, compulsory process, and a fair trial;
12. his conviction was based on materially false evidence presented to the jury, and is thus not supported by sufficient evidence;
13. he received ineffective assistance of counsel prior to trial; and
14. the trial court violated state law when it did not allow him ten days to prepare for trial.
( See Pet. at attached unnumbered pages between pages 7 and 8, hereinafter cited to by ground number.) Furthermore, throughout his federal petition, petitioner asserts various errors that allegedly occurred during the resolution of his state habeas application. ( See generally id.)
E. Exhaustion : Respondent concedes that petitioner has sufficiently exhausted available state remedies on the fourteen enumerated issues presented in the instant federal petition. (Answer at 5.) Nevertheless, respondent asserts that Claim 12 is procedurally barred from federal habeas review to the extent petitioner seeks to challenge the sufficiency of the evidence to support his conviction. ( Id. at 20-22.) Alternatively, he asserts that such claim fails on its merits. ( Id. at 22.)
II. PROCEDURAL BAR
Respondent asserts that to the extent petitioner seeks to challenge the sufficiency of the evidence to support his conviction (twelfth claim), such claim is procedurally barred. ( See Answer at 20-22.) Federal courts may not review a state court decision that rests on an adequate and independent state procedural default unless the habeas petitioner shows "cause" for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. See id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
Under Texas law, a defendant cannot challenge the sufficiency of the evidence in a state application for writ of habeas corpus. Ex parte McClain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). The failure to raise such a challenge on direct appeal constitutes "a procedural default under state law." Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994). The procedural default doctrine provides an adequate reason to deny federal claims based upon sufficiency of the evidence, when the state habeas court has relied upon the procedural default and the Texas Court of Criminal Appeals denied the state petition without stating its reasons. See West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996). However, "the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: `[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.'" Harris v. Reed, 489 U.S. 255, 261-62 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)).
In this instance the Texas Court of Criminal Appeals denied the state petition without written order. See Ex parte Sims, No. 23,100-03, slip op. at 1 (Tex.Crim.App. July 11, 2001). Such denial constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). No state court has relied upon the procedural default to dispose of petitioner's sufficiency claim. When the state court appears to have considered the merits of a claim and does not explicitly rely on a procedural bar to resolve such claim, there is no procedural default. See Dowthitt v. Johnson, 230 F.3d 733, 757 n. 36 (5th Cir. 2000). "The state must `clearly and expressly' rely on the adequate and independent state ground" before the federal courts are prohibited from considering the claim due to procedural bar. Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). In this instance, the state court did not clearly and expressly rely upon an adequate and independent state ground to resolve the insufficiency claim. Under the circumstances of this case, the claim is not procedurally barred from federal habeas review. See Bennett v. Whitley, 41 F.3d 1581, 1582-83 (5th Cir. 1994).
Because the procedural default doctrine does not bar federal habeas relief on petitioner's insufficiency-of-the-evidence claim, the Court will consider the merits of that claim along with the other claims raised in the instant federal petition. In addition, because resolution of some claims are somewhat dependent upon resolution of other raised claims the Court will consider the claims in a different order than presented to the Court.
III. APPLICABLE LAW
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The court of appeals also considered the merits of petitioner's claims raised on direct appeal. See Sims II. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "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, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if 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. at 413; accord Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; accord Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `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. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(I).
Petitioner argues that the State's fact-finding procedures were inadequate, and thus do not invoke the presumed correctness generally afforded to fact findings under § 2254(d)(2). ( See generally Pet.) He claims that the state court refused to conduct an evidentiary hearing on his claims; refused to provide him a copy of the transcript of any habeas hearing; and refused to appoint him an attorney to assist on his state habeas application. ( Id.) He further claims that the state courts issued no findings of fact which are entitled to a presumption of correctness. ( Id.) He contends that he was denied a full and fair hearing. ( Id.) These claims, however, do not make § 2254(d) inapplicable.
Many of these arguments and contentions were specifically addressed by the Fifth Circuit in Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). In Valdez, the Fifth Circuit rejected a similar challenge to the application of the presumption of correctness to state court findings based on the allegation that the petitioner had not received a full and fair hearing before the state court. The Fifth Circuit held that in cases governed by the AEDPA, a full and fair hearing at the state court level is no longer a "prerequisite to operation of AEDPA's deferential framework" as it was under pre-AEDPA standards. Id. at 948. Thus, petitioner's argument that the state court's factual findings are not entitled to deference due to an inadequate state court hearing process fails under Valdez, and AEDPA's presumption of correctness applies in this case.
IV. JURISDICTION OF TRIAL COURT
In his first ground for relief, petitioner claims that the trial court lacked jurisdiction over the state criminal action which led to the conviction he challenges in the instant federal action because he filed a notice of removal on February 19, 1994, pursuant to "Federal Revised Statute 1874 § 641." (Pet. at Ground 1; Separate Mem. at 61-65.)To remove a state criminal action to federal court, the defendant must "file in the district court of the United States for the district and division within which such action is pending a notice of removal." See 28 U.S.C. § 1446(a). Petitioner provides nothing which shows that he filed a removal notice in this Court. Furthermore, the state records show that he did not file such a notice in this Court. See Statement of Facts, Vol. II at 7-8 [hereinafter cited as SF94-volume # at page] (showing that petitioner filed the removal notice with the "5th Criminal District Court", and believed it was unnecessary to file such notice in federal court). Moreover, there is no indication in the records of this Court that petitioner filed a removal notice in this Court as required by statute. Petitioner's conclusory, self-serving allegations provide no basis for federal habeas relief on this claim. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam). Consequently, this claim entitles petitioner to no federal habeas relief.
Petitioner's reliance upon "Federal Revised Statute 1874 § 641" is misplaced because that statute is a prior codification of the removal statutes which are currently found in 28 U.S.C. §§ 1443, 1446, and 1447.
The Court refers to these statements of fact as "SF94" to reflect that they arose out of petitioner's state conviction for the murder of Hughes in Cause No. F94-00946, and to differentiate between these statements of fact and those which arose out of the murder of petitioner's ex-wife in Cause No. F88-91352. The latter statements of fact will be referred to with "SF88".
V. RIGHT TO COUNSEL
In his fourth ground for relief, petitioner claims that the State unconstitutionally forced him to surrender and waive his right to be represented by counsel. ( See Pet. at Ground 4.) The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const., art. VI. Because the rights embodied in the Sixth Amendment "are basic to our adversary system of criminal justice, they are part of the `due process of law' that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States." Faretta v. California, 422 U.S. 806, 819 (1975). The Sixth and Fourteenth Amendments also grant the parallel right to self-representation. Id. at 832. However, there is no constitutional right to counsel of the defendant's choice. See United States v. Breeland, 53 F.3d 100, 106 n. 11 (5th Cir. 1995); Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993)."When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must `knowingly and intelligently' forgo those relinquished benefits." Faretta, 422 U.S. at 835. To be constitutionally effective, a decision to represent oneself must be made (1) competently; (2) knowingly and intelligently; and (3) voluntarily. Godinez v. Moran, 509 U.S. 400, 400-01 (1993). Such decision is voluntary, if it is uncoerced. Id. at 401 n. 12.
In this instance, petitioner raised this claim on direct appeal, and the court of appeals found no merit to the claim. See Sims II at *1-2. The court found that petitioner voluntarily waived his right to proceed with appointed counsel, and knowingly and intelligently chose to represent himself. The state record clearly reflects that the trial court gave petitioner the opportunity to proceed to trial with appointed counsel. The record further reflects that petitioner chose to proceed without counsel, and that the trial court warned him of the dangers of self-representation. Despite the admonitions of the trial court, petitioner chose to proceed without counsel. He also raised the claim in his state writ, and the Texas Court of Criminal Appeals denied the application without written order. See Ex parte Sims, No. 23,100-03, slip op. at 1 (Tex.Crim.App. July 11, 2001).
That petitioner wanted counsel other than appointed counsel is of little consequence as he has no right to counsel of his choice. The record reflects that he competently, knowingly and intelligently, and voluntarily chose to forego representation by appointed counsel and proceeded to represent himself at trial. Consequently, this claim entitles petitioner to no habeas relief.
VI. TEN-DAY RULE
In his fourteenth ground for relief, petitioner alleges that the trial court denied him ten days to prepare for trial in violation of TEX. CODE CRIM. PROC.ANN. art. 1.051(e) (Vernon Supp. 2004). (Pet. at Ground 14.) In his fourteenth and ninth claims, petitioner further alleges that such violation deprived him of due process. ( Id. at Grounds 9 14.) In his eleventh claim, he further claims that such denial deprived him of equal protection, which prevented him from obtaining due process, compulsory process, and a fair trial. ( Id. at Ground 11.)
Article 1.051(e) of the Texas Code of Criminal Procedure provides:
An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court. If a nonindigent defendant or an indigent defendant who has refused appointed counsel in order to retain private counsel appears without counsel at a proceeding after having been given a reasonable opportunity to retain counsel, the court, on 10 days' notice to the defendant of a dispositive setting, may proceed with the matter without securing a written waiver or appointing counsel.
On October 17, 1996, petitioner filed a motion to dismiss appointed counsel and proceed pro se at trial. See TR94 at 11. The trial court held a hearing on that motion on October 24, 1996. See SF94-I at 9-22. After hearing argument on the motion, the trial court granted it, and set the case for trial for November 4, 1996. Id. at 22. The trial court thus accorded petitioner ten days to prepare for trial, so there was no violation of Article 1.051(e).
On November 4, 1996, the trial court denied petitioner's request for a ninety-day extension of time. SF94-III at 15. It also considered a request from petitioner for attorney representation, but declined to appoint any attorney other than the two attorneys who had previously been appointed to the case. Id. at 8-14. These rulings by the trial court did not entitle petitioner to further time to prepare for trial under Article 1.051(e).
It is not "the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner is thus entitled to federal habeas relief due to trial error only if "the error `had substantial and injurious effect or influence in determining the . . . verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Because the Court has found no error of the trial court with respect to the ten-day requirement of Article 1.051(e), it need not consider whether "the error" had a substantial and injurious effect or influence in determining the verdict.
Because the trial court provided petitioner with the requisite time to prepare for trial, his fourteenth, ninth and eleventh claims regarding the ten-day rule entitle him to no habeas relief.
VII. PRESUMPTION OF INNOCENCE
In his tenth ground for relief, petitioner claims that he was deprived of his constitutional right to be presumed innocent when the prosecution stole the suit he intended to wear at trial, and thus forced him to wear prison garments during trial. ( See Pet. at Ground 10.)"The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503, (1976). "The physical appearance of a defendant while in the presence of the jury may adversely affect the presumption of innocence." Chavez v. Cockrell, 310 F.3d 805, 808 (5th Cir. 2002), cert. denied, 538 U.S. 915 (2003). However, the United States Constitution merely proscribes compelling "an accused to stand trial before a jury while dressed in identifiable prison clothes" against his will. Williams, 425 U.S. at 512-13.
Petitioner provides nothing to show that anyone stole his trial attire. The record reflects that the suit which petitioner intended to wear at trial was lost. SF94-III at 16. Although "an accused should not be compelled to go to trial in prison or jail clothing", id. at 504, the trial court in this case did not compel petitioner to wear his jail whites at trial. The trial court offered petitioner the use of alternate clothing, but he refused to wear the substitute clothing. Id.; SF94-IV at 1. Petitioner specifically chose to wear his "jail whites" rather than the alternate, available clothing. SF94-IV at 1-4. Petitioner refused to wear the proffered blue slacks and shirt because he claimed the clothes smelled bad. Id. at 1-3. Notwithstanding petitioner's assertion that the alternate clothing smelled bad, the trial court did not compel him to stand before the jury in identifiable prison clothing against his will. Under the circumstances of this case, the compulsion necessary for a constitutional violation is lacking. Consequently, this claim entitles petitioner to no habeas relief.
Furthermore, an infringement on the presumption of innocence is subject to harmless-error analysis. See Williams, 425 U.S. at 506 (citing Fifth Circuit law for the proposition). Thus, even were the Court to find that the trial court compelled petitioner to wear his prison clothing against his will, the claim would fail because appearing before the jury in prison garb was harmless error under the facts of this case. As will be seen infra, the jury heard overwhelming evidence that petitioner murdered Hughes. That petitioner appeared before the jury in jail attire was harmless error, if error at all. The alleged error had no substantial or injurious effect or influence in determining the verdict.
Petitioner's tenth claim entitles him to no habeas relief because the trial court did not compel him to stand before the jury in identifiable prison clothing against his will, and even if it did, such error was harmless.
VIII. DOUBLE JEOPARDY
In his fifth ground for relief, petitioner claims that prosecuting him for the murders of his ex-wife and her boyfriend in separate trials violates the Double Jeopardy Clause of the United States Constitution. He also claims separate trials are barred by collateral estoppel, res judicata, and claim preclusion because both deaths occurred at the same time. ( See Pet. at Ground 5; Separate Mem. at 28-31.)
The Double Jeopardy Clause protects against multiple prosecutions and punishments for the same offense. See Monge v. California, 524 U.S. 721, 727 (1998). More specifically, "the double jeopardy clause serves three interests, protecting against: (1) prosecution of the same offense after acquittal; (2) prosecution of the same offense after conviction; and (3) multiple punishments for the same offense." United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992).
The arguments of petitioner implicate the second and third interests protected by the Double Jeopardy Clause. However, despite his arguments, petitioner has neither been prosecuted twice nor received multiple punishments for the same offense. The State merely charged and prosecuted petitioner for two separate murders. That they occurred at approximately the same time does not preclude separate prosecutions for each murder. When separate prosecutions are based upon a single criminal episode which resulted in two murder victims, separate prosecutions and punishments do not violate the Double Jeopardy Clause of the United States Constitution. See Miller v. Turner, 658 F.2d 348, 350-51 (5th Cir. Unit B 1981).
Furthermore, petitioner's separate trials for the murders of his ex-wife and her boyfriend do not implicate collateral estoppel. "As the Supreme Court has recognized, the Double Jeopardy Clause incorporates the doctrine of collateral estoppel." Neal v. Cain, 141 F.3d 207, 210 (5th Cir. 1998) (citing Ashe v. Swenson, 397 U.S. 436, 443-44 (1970)). In the context of a criminal case, "collateral estoppel may either bar a subsequent prosecution, or it may prevent the relitigation of particular facts necessarily established in the prior proceeding." Id.; see generally De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5th Cir. 1987) (holding collateral estoppel applies if the issue was decided in favor of the defendant in the first trial). In this case, because petitioner was prosecuted for two distinct murders, separate trials for such murders do not violate double jeopardy, collateral estoppel, or the related concepts of res judicata and claim preclusion. Accordingly, these claims entitle petitioner to no habeas relief.
IX. SUPPRESSION OF EVIDENCE
In his second ground for relief, petitioner claims that the prosecutor engaged in misconduct by withholding favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). ( See Pet. at Ground 2; Separate Mem. at 1-6.) Specifically, petitioner claims that the prosecutor withheld (A) evidence relating to testimony from witness Jimmy Golson that petitioner knew the victim, James Hughes; (B) a photo of the location of an empty shell casing; and (C) autopsy diagrams of the victim. ( See Pet. at Ground 2; Separate Mem. at 1-6.) Petitioner's claim concerning witness Golson centers around an alleged failure of the State to provide petitioner with testimony from Bob Alexander, a state investigator who testified at a May 5, 1989 hearing that his investigation revealed that petitioner did not know Hughes. (Separate Mem. at 3-4.) The claim also apparently concerns the State's alleged failure to disclose the fact that Golson would testify against petitioner. ( See id. at 3.)
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a prosecutor must disclose evidence to a criminal defendant if that evidence is favorable to the defendant and material to his guilt or punishment. 373 U.S. at 87. " Brady claims involve `the discovery, after trial of information which had been known to the prosecution but unknown to the defense.'" Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994). "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
"[E]vidence is `material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a `reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5 (1995). Suppressed evidence is not considered material within the meaning of Brady when similar evidence is admitted before the trier of fact. E.g., Jackson v. Johnson, 194 F.3d 641, 650 (5th Cir. 1999); Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996).
The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial."Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In other words, there must be "a `significant possibility' of a different result to characterize the Brady materiality standard." Strickler, 527 U.S. at 300 (Souter, J., concurring). In any event, the touchstone inquiry remains "whether the evidentiary suppression `undermines our confidence' that the factfinder would have reached the same result." Id. at 300-01.
In this instance, the documentary evidence which was allegedly suppressed was placed before the trier of fact during both of petitioner's trials. State's Exhibits 15 and 16 — two photographs that show the location of the shell casings — were admitted during both trials. See SF94-VI at 126; SF94-IX (containing exhibits); SF88-II at 88, 296; SF88-IV (containing exhibits). Diagrams from the autopsy of Hughes (State's Exs. 104-05 in second trial and Def.'s Ex. 8 in first trial) were also admitted during both trials. See SF94-VII at 16; SF94-IX (containing exhibits); SF88-II at 390-91; SF88-IV (containing exhibits). There thus appears to be no suppression of these documents.
There also appears to be no suppression regarding the identity of Golson as a witness or the testimony of Bob Alexander. Petitioner knew from his previous trial that Golson would testify regarding petitioner's statement that he would kill his ex-wife and her boyfriend. SF88-II at 261. Petitioner concedes that he "certainly knew of Detective Alexander and the relevance of his prior testimony." (Separate Mem. at 3.) He thus knew of the allegedly withheld evidence prior to trial. There can be no Brady violation when the petitioner knew of the evidence alleged to have been suppressed. Evidence is not suppressed within the meaning of Brady when the defendant knew or should have known of the facts of the exculpatory evidence. See Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994). Because there has been no violation of Brady, petitioner is entitled to no federal habeas relief on his second claim.
X. PERJURED TESTIMONY
In his third claim, petitioner claims that the State knowingly used perjured testimony and failed to correct the false evidence. (Pet. at Ground 3; Separate Mem. at 10-13.) Specifically, he contends that the State "`should have known' its witness in chief Jimmy Golson was lying" when he testified that petitioner knew the murder victim in this case. (Pet. at Ground 3.) He further contends that the "State knew that physical evidence refuted State's claims of its witnesses that [he] walked around back of car firing shell ejecting pistol or that he fired down into [the victim's] back at point blank and failed to correct known false evidence." ( Id.) He also contends that the "State knew before trial that [he] was initially on the left side of the car and that his pistol discharged at this point and victim Hughes was wounded." ( Id.)
The Due Process Clause of the Fourteenth Amendment to the United States Constitution "forbids the State from knowingly using perjured testimony where there is a reasonable likelihood that such testimony will affect the verdict." Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000) (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)). Due process is also violated when the State knowingly offers false testimony to obtain a conviction and fails to correct such testimony. Thompson v. Cain, 161 F.3d 802, 808 (5th Cir. 1998) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)).
To obtain habeas relief for knowing use of perjured testimony or failing to correct known false testimony, petitioner must show that the testimony was actually false, the prosecutor knew it was false, and the evidence was material. See id. (failing to correct known false testimony); Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir. 1994) (suborning perjury). Evidence is "material" when it is "a highly significant factor reasonably likely to have affected the jury's verdict." Blackmon, 22 F.3d at 565. As to "reasonable likelihood," the United States Supreme Court has treated this requirement as "synonymous with `reasonable possibility' and thus ha[s] equated materiality in the perjured-testimony cases with a showing that suppression of the evidence was not harmless beyond a reasonable doubt." See Strickler v. Greene, 527 U.S. 263, 299 (1999) (Souter, J., concurring). The Supreme Court has defined the harmless-beyond-a-reasonable-doubt standard as no "`reasonable possibility' that trial error contributed to the verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
In this instance, petitioner presents nothing to show that the complained-of testimony was false or that the State knew it was false. Absent such a showing, petitioner's due-process claim necessarily fails. "Conflicting or inconsistent testimony is insufficient to establish perjury." Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001); accord Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). Petitioner merely quarrels with testimony that contradicts his own trial testimony, see SF94-VII at 59-180, or is inconsistent with other testimony or evidence. This claim entitles petitioner to no habeas relief.
XI. SUFFICIENCY OF THE EVIDENCE
In his twelfth ground for relief, petitioner claims that his conviction was based on materially false evidence presented to the jury. ( See Pet. at Ground 12.) He further claims that false evidence constitutes no evidence, and is insufficient to support his conviction. ( Id.; Separate Mem. at 51-59.) He asserts that the evidence raised issues of sudden passion, accident, and self-defense. ( See Separate Mem. at 54.)
Petitioner's claim that "no evidence" supports his convictions is the same as a challenge to the legal sufficiency of the evidence. See Haley v. Cockrell, 306 F.3d 257, 266-67 (5th Cir. 2002) (noting that a claim of "no evidence" is the same as a claim of insufficiency of the evidence), vacated on other grounds, ___ U.S. ___, 124 S.Ct. 1847 (2004).
"A criminal defendant has a federal due process right to be convicted only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense." Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal courts have extremely limited habeas review of claims based on the sufficiency of the evidence, and the standard for reviewing such claims is supplied by Jackson v. Virginia, 443 U.S. 307 (1979). When reviewing such claims against the underlying conviction, the relevant question "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. When "faced with a record of historical facts that supports conflicting inferences [courts] must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326. Further, under Jackson, "the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). "Determining the weight and credibility of the evidence is within the sole province of the jury." United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992). Courts view "any required credibility determinations in the light most favorable to the guilty verdict." United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000). They do not "second-guess the weight or credibility given the evidence." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999). The Jackson standard applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998).
Federal courts apply the Jackson "standard looking to the state's substantive law, giving great weight to the state court's determination." Miller v. Johnson, 200 F.3d 274, 286 (5th Cir. 2000). State case law and statutes bind the courts in their determination of the elements needed to be proven. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). In reviewing a challenge to the sufficiency of the evidence supporting the underlying conviction, " Jackson requires . . . that the review occur `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n. 16). The federal courts must "independently analyze the governing statute, the indictment, and the jury charge to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry." Id. at 260. When considering a claim of insufficient evidence to support the underlying conviction on federal habeas review, this Court should only determine "whether the evidence was constitutionally sufficient to convict [petitioner] of the crime charged." Id. at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)).
In this case, the State charged petitioner with murder. TR94 at 3. It specifically charged that, on or about December 1, 1988, in Dallas County, Texas, petitioner "unlawfully then and there knowingly and intentionally cause the death of JAMES HUGHES, an individual, by shooting said JAMES HUGHES with a firearm, a deadly weapon." Id. The trial court, furthermore, read the following charge to the jury: "Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual." Id. at 38. The jury charge is consistent with Texas law that a person commits murder when he "intentionally or knowingly causes the death of an individual." See TEX. PENAL CODE ANN. § 19.02(a)(1) (Vernon 1992) (showing statute as it existed prior to its amendments in 1993; subsequent amendments have re-designated the subparagraph as (b)(1) but has not changed the substance of the subparagraph).
In this instance, petitioner testified that he caused the death of James Hughes on December 1, 1988, in Dallas County, Texas. SF94-VII at 114. He testified that he shot Hughes with a firearm, and that the firearm was a deadly weapon. Id. at 115. He testified that, although he intentionally shot his weapon, he did not intend to kill Hughes. Id. He merely intended to shoot a weapon carried by Hughes. Id. Petitioner further testified that he shot at Hughes five times while Hughes was running. Id. at 104-08. He testified that he fired two more shots at Hughes when he was lying on the ground. Id. at 107. He continued to attempt to fire his weapon at Hughes although he had already exhausted all fourteen rounds. Id. at 107-08. He further testified that, prior to approaching his ex-wife: "As I got out of the car . . . I slid my weapon from my hip and slid it over here into the cross-draw so I could pull it out." Id. at 100. Despite his claim that he did not knowingly and intentionally cause Hughes's death, the evidence supports the jury's finding that petitioner did knowingly and intentionally cause such death.
Furthermore, the State presented many witnesses in its case in chief to support a finding that petitioner knowingly and intentionally caused Hughes's death, and that petitioner was not acting in the heat of sudden passion. Officer West witnessed the shooting and testified that petitioner slowly and methodically shot Hughes. SF94-VI at 117. She testified that the pace was consistent with aiming at the target and shooting. Id. She testified that Hughes appeared to be trying to get away from petitioner and made no aggressive motions toward petitioner. Id. at 118-19, 152. She also testified that petitioner shot Hughes twice while he was on the ground. Id. at 141. Officer Hernandez also witnessed the shooting, and testified that petitioner shot Hughes while Hughes was trying to get away from him. Id. at 169-70. The officer further testified that petitioner ran when he saw the two police officers approaching. Id. at 171. Another witness, Tammy Genzel, testified that she saw petitioner shoot at Hughes until he ran out of bullets. Id. at 221. She testified that petitioner was "shooting to kill." Id. Witness Linda Bowman testified that she did not see Hughes with any weapon, and that Hughes was merely trying to get away from petitioner. Id. at 256. She testified that petitioner was "aiming carefully and very deliberately shooting at [Hughes]." Id. at 258. She testified that petitioner continued to shoot at Hughes even after Hughes had fallen to the ground. Id. at 259. Jimmy Golson, a former friend of petitioner, testified that petitioner had confided in him that he would kill his ex-wife and boyfriend, if necessary to obtain custody of his daughter. Id. at 320-21.
The foregoing testimony more than suffices to show the requisite intent to support the murder conviction. Although petitioner presented testimony about the shooting being accidental and that he was acting in self-defense or in the heat of sudden passion, the jury made its credibility determination and found the State's witnesses more credible than petitioner. Viewed in a light most favorable to the prosecution, the Court finds that the record supports the jury verdict. From the evidence, a rationale jury could conclude that petitioner intentionally or knowingly caused Hughes's death, and that such death was not merely accidental. A rationale jury could conclude that petitioner used a deadly weapon. A rational jury could also conclude that petitioner was not justified in the use of force against Hughes. A rational trier of fact could have found the essential elements of the murder offense beyond a reasonable doubt. A rational trier of fact could have found against petitioner on his self-defense and sudden passion theories. The Court finds that the evidence was constitutionally sufficient to convict petitioner for Hughes's murder. See Bledsue, 188 F.3d at 262.
Petitioner has failed to carry the heavy burden imposed by 28 U.S.C. § 2254(d), as interpreted by Williams v. Taylor, 529 U.S. 362, 412-13 (2000), to show that the state court determination of this issue was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding or that such 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. Accordingly, petitioner is entitled to no federal habeas relief on his claim that the evidence is legally insufficient to support his conviction.
XII. "IMPOSTER WITNESS"
In Claim 6, petitioner claims that the State knowingly used an "imposter witness" during punishment. ( See Pet. at Ground 6.) He asserts that the witness who testified as "Rene Patruzo" was not in fact such person. ( Id.)
The trial transcript shows that the witness identified himself as "Rinardo A. Paturzo." See SF94-IX at 26.
Conclusory allegations of prosecutorial misconduct are insufficient to obtain habeas relief. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (noting that conclusory allegations are insufficient to obtain habeas relief). Petitioner presents nothing to demonstrate that the State knew or should have known that the witness who presented himself as "Rene Patruzo" was not such individual. Petitioner has presented nothing to show that the witness was not in fact the person that he claimed to be. Furthermore, petitioner questioned this witness during the punishment phase in a manner which suggested that he knew the witness; at no time did he assert that the witness was an imposter. See SF94-IX at 29-32, 35-37. This conclusory claim entitles petitioner to no habeas relief.
XIII. ILLEGAL SENTENCE
In his seventh claim, petitioner claims that the State illegally stacked his sentences and required him to serve his sentences in installments. ( See Pet. at Ground 7; Separate Mem. at 45-49.) The crux of this claim is that the trial court illegally stacked his sentences in 1989, and that ordering his current sentence to run consecutively with the conviction he received for murdering his ex-wife is also illegal and requires him to serve his sentences in installments. ( See Separate Mem. at 45-49.)
This claim has no merit. The Texas Court of Criminal Appeals overturned the judgments of conviction and illegal sentences that resulted from petitioner's guilty pleas to the murders of his ex-wife and her boyfriend because state law required concurrent sentences to be imposed when, in a single criminal action, a defendant is found guilty of more than one offense arising out of the same criminal episode. See Ex parte Sims, 868 S.W.2d 803, 803-05 (Tex.Crim.App. 1993) ( en banc), overruled in part by Ex parte McJunkins, 954 S.W.2d 39 (Tex.Crim.App. 1997) (overruling the holding in Sims that a defendant cannot waive concurrent sentences when he is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action). The cases were remanded so that petitioner could answer the charges against him, id., and upon remand, the prior judgments and sentences ceased to operate.
Subsequent to the remand, petitioner received separate trials on each of the alleged murders. In each trial, a jury found him guilty. The jury in the ex-wife's murder case assessed punishment at ninety-nine years imprisonment. TR88 at 64. The trial court credited petitioner with time served from December 11, 1988, through October 9, 1996, the date of judgment of conviction. Id. The jury in Hughes's murder case assessed punishment at life imprisonment. See TR94 at 56. The trial court credited petitioner with time served from December 11, 1988, through November 13, 1996, the date of judgment of conviction. Id. It also specifically indicated:
The Judgment and Sentence in this cause shall begin when the Judgment and Sentence in the following cited cause has ceased to operate; to wit: Cause No. F88-91352-KL, styled the State of Texas v. Billy Ross Sims, in the Criminal District Court No. 5 of Dallas County, Texas; being a conviction for the offense of Murder, in which the Jury assessed punishment of 99 years confinement in the penitentiary and a fine of $10,000.00; in which sentence was pronounced on October 9, 1996.Id. at 58.
The judgments in petitioner's two murder cases show that he is not serving his sentences in installments. Petitioner's sentence for the murder of his ex-wife commenced on October 9, 1996, with credit for time served to the date of judgment. Petitioner's sentence for the murder at issue in this case will commence when judgment and sentence in his prior case ceases to operate. At that point, he will receive credit for time served prior to the date of judgment, i.e., November 13, 1996. Having sentences for separate offenses run consecutively does not constitute an illegal stacking of sentences. See United States v. Garcia, 322 F.3d 842, 845-46 (5th Cir. 2003) (recognizing that federal courts may impose consecutive prison terms for each count of the indictment). Furthermore, by trying petitioner in separate trials on remand for each of the two charged murders, the State corrected the original problem under state law presented by the consecutive sentences imposed on petitioner's guilty pleas.
For the foregoing reasons, petitioner's seventh ground for relief entitles petitioner to no habeas relief.
XIV. INEFFECTIVE ASSISTANCE OF COUNSEL
In Claim 13, petitioner claims that he received ineffective assistance of counsel prior to trial when his appointed attorney failed to compel the trial court to rule upon a filed motion for discovery. (Pet. at Ground 13.) He further claims that his appointed attorney failed to consult with him, conducted no interviews of the State's witnesses, and
conducted an uninformed, impromptu, ad lib cross examination ineffectively at a previous trial, called no witnesses, put on no defense, presented no mitigating evidence, sided with the prosecution in closing argument telling the jury to disregard physical evidence of location of bullet shell casings . . . and allowed the State to put on material false evidence and testimony without objection.
( Id.; see also Separate Mem. at 21-25.) He also claims that his appointed attorneys failed to keep him informed, concealed names of State witnesses, induced petitioner to fire them, "failed to obtain abundantly available favorable evidence due to improper trial preparation", sided with the State during closing arguments, and failed to discuss issues for appeal. ( Id. at 25.)
In his eighth ground for relief, petitioner further claims that he received ineffective assistance from his appellate attorneys Jeff Keck and Allan Fishburn. ( See Pet. at Ground 8; Separate Mem. at 33-41.) He specifically contends that Mr. Keck withdrew as attorney without notice, and stole legal research, evidence, and transcripts from petitioner. (Pet. at Ground 8.) He further contends that his second appointed appellate attorney, Mr. Fishburn, failed to consult with him and failed to raise issues on appeal. ( Id.) He asserts that Fishburn should have raised on appeal the enumerated issues raised in this federal writ. ( Id.; Separate Mem. at 38-39.) He further asserts that Fishburn instead raised weaker claims on appeal. ( See Separate Mem. at 37.)
The Sixth Amendment to the United States Constitution provides criminal defendants a right to effective assistance of counsel during trial. U.S. Const., art. VI. Criminal defendants, furthermore, have a constitutional right to effective assistance of counsel in their first appeal. Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Douglas v. California, 372 U.S. 353, 356-57 (1963). To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. Id. at 696. "A claim of ineffective assistance based on the failure to argue an issue on appeal is governed by the familiar two-part Strickland test." United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). Strickland likewise applies to other claims of ineffective assistance of appellate and trial counsel. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
To determine whether counsel's performance is constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In the context of ineffective assistance of trial counsel, the prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). To show prejudice, when an attorney has "failed to adequately brief an issue on direct appeal, [petitioner] must show initially that the appeal would have had, with reasonable probability, a different outcome if the attorney adequately addressed the issue." United States v. Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001). Petitioner "must then demonstrate that the attorney's deficient performance led to a fundamentally unfair and unreliable result." Id. Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Petitioners must "affirmatively prove prejudice." Id. at 693. To establish prejudice, they must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
A. Ineffective Assistance of Trial Counsel
Petitioner's claims of ineffective assistance of trial counsel appears to raise claims relating to the trial for the murder of his ex-wife in addition to pre-trial matters related to this case. Because claims of ineffective assistance related to petitioner's first trial cannot entitle him to habeas relief for the murder conviction challenged in this case, the Court will not examine those claims. Furthermore, one who has chosen to represent himself at trial cannot complain of ineffective assistance of trial counsel. See Faretta v. California, 422 U.S. 806, 834 n. 46 (1975). Thus, to the extent petitioner complains about omissions of counsel during the Hughes murder trial, such complaints fail to provide a basis for habeas relief.
In addition, by firing appointed counsel and electing to represent himself, petitioner took on the role of defense counsel and removed any duty on the part of counsel to present a defense, consult with petitioner, keep petitioner informed about the case, conduct interviews of witnesses or conduct other investigations, or obtain a ruling on any motion filed with the trial court. Attorneys who have been removed from a case do not provide deficient representation by not further participating in the case.
Furthermore, the Court finds the allegations of ineffective pretrial assistance of counsel conclusory and without support. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Petitioner has demonstrated no prejudice from the alleged deficiencies of counsel. He has not shown a reasonable probability that, but for the alleged deficiencies of counsel, the outcome of his trial would have been different.
For all of these reasons, petitioner's claims of ineffective assistance of trial counsel entitle him to no habeas relief.
B. Ineffective Assistance of Appellate Counsel
Petitioner claims that he received ineffective assistance from his appellate attorneys. ( See Pet. at Ground 8.) He specifically contends that Mr. Keck withdrew as attorney without notice, and stole research, evidence, and transcripts from petitioner. ( Id.) He further contends that Mr. Fishburn, failed to consult with him and failed to raise issues on appeal. ( Id.) He claims that counsel instead raised weaker claims on appeal. ( See Separate Mem. at 37.)
To render effective assistance of counsel, appellate counsel need not raise every non-frivolous issue on appeal. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). "Instead, to be deficient, the decision not to raise an issue must fall `below an objective standard of reasonableness.'" United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (quoting Strickland, 466 U.S. at 688). "[A] reasonable attorney has an obligation to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful. Solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court's attention." Williamson, 183 F.3d at 462-63 (footnote and citations omitted). To determine whether appellate counsel was deficient, the Court thus must consider whether the omitted challenge "would have been sufficiently meritorious such that [the attorney] should have raised it on appeal." Phillips, 210 F.3d at 348.
In this case, petitioner has not shown that Mr. Keck stole documents from him. Nor has he shown how the alleged stolen documents created a reasonable probability of a different outcome on appeal. He has not shown that Mr. Keck's alleged surprise withdrawal as appellate counsel created a reasonable probability of a different outcome on appeal. Mr. Keck's withdrawal was cured by the appointment of Mr. Fishburn. The claims of ineffective assistance related to Mr. Keck provide no basis for federal habeas relief.
The Court has examined a transcript of a hearing held June 18, 1999, with respect to Fishburn's continued representation of petitioner on appeal, see Reporter's Record Court of Appeals Hearing, and has found nothing within that transcript to demonstrate that petitioner was prejudiced by the missing documents.
Petitioner also makes unsupported allegations that Mr. Fishburn failed to consult with him. The state record belies the allegations. See Reporter's Record Court of Appeals Hearing (showing consultation between Fishburn and petitioner). Moreover, petitioner fails to show how further consultation would have created a reasonable probability of a different outcome on appeal. He suggests that, had Fishburn properly consulted with him, Fishburn would have raised on appeal the enumerated issues that are now raised in the instant federal petition. However, because the Court has considered each of these claims in this action and concluded that none of these claims would have succeeded on appeal, petitioner has not shown that he was prejudiced by a lack of additional consultation with Mr. Fishburn.
Further, because the Court has determined that the claims raised in this petition lack merit, appellate counsel did not render ineffective assistance by not presenting those enumerated issues to the court of appeals. Appellate counsel is not deficient in failing to present a meritless claim on direct appeal. Furthermore, to show prejudice from a failure to adequately brief an issue for appeal, petitioner must show a reasonable probability that the appeal would have had a different outcome had appellate counsel adequately addressed the issues. Petitioner has made no such showing of prejudice. The claim that Fishburn failed to raise claims on appeal thus provides no basis for federal habeas relief.
Finally, petitioner contends that Mr. Fishburn rendered ineffective assistance when he raised weak claims on appeal. However, appellate attorneys do not generally render ineffective assistance by raising points of error that do not succeed on appeal. The Court perceives no deficiency of appellate counsel in making the claims raised on appeal. Petitioner, moreover, has shown no prejudice from counsel making such claims. He has not shown that counsel failed to make an argument that would have created a reasonable probability of success on appeal. He has not shown any solid, meritorious argument based on directly controlling precedent that was not brought to the appellate court's attention. He has thus shown no ineffective assistance of appellate counsel.
For the foregoing reasons, petitioner's claims of ineffective assistance of appellate counsel entitle him to no habeas relief.
XV. ERRORS IN STATE HABEAS PROCESS
Throughout his federal petition, petitioner asserts errors which allegedly occurred during the resolution of his state habeas application. ( See generally Pet.) He argues that he was deprived of his right to due process when the state habeas court denied him a full and fair hearing, denied him an attorney, failed to issue written findings, and failed to provide him a transcript of the habeas hearing. ( Id.)
Although petitioner does not raise these alleged errors as a separate, enumerated claim, it appears prudent to consider their viability, or lack thereof. Petitioner's arguments with respect to errors that allegedly occurred during the resolution of petitioner's state habeas application raise no claim cognizable under 28 U.S.C. § 2254. Federal habeas relief cannot be had "absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); accord 28 U.S.C. § 2254(a). This Court cannot grant habeas corpus relief "to correct alleged errors in state habeas proceedings." See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (holding that habeas relief was not available for such alleged errors). "[E]rrors in state postconviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief." Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999). Such errors necessarily fail "because infirmities in state habeas proceedings do not constitute grounds for relief in federal court." Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997). Accordingly, these arguments entitle petitioner to no habeas relief.
XVI. STATE CONSIDERATION OF CLAIMS
Petitioner raised each of his enumerated federal claims to the state courts. The state courts adjudicated the claims on the merits. The decisions of the state court do not appear inconsistent with applicable Supreme Court precedent. The decisions do not appear to have involved any unreasonable application of Supreme Court precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court. Under applicable Supreme Court standards and the AEDPA standards, petitioner is entitled to no habeas relief on the claims raised in the instant petition.XVII. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
XVIII. APPOINTMENT OF COUNSEL
Petitioner asks the Court to appoint counsel for him in this habeas action. Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Court provides for the appointment of counsel "[i]f an evidentiary hearing is required." The Court has determined that such a hearing is not required in this case. Rule 8(c) also provides that it does "not limit the appointment of counsel . . . at any stage of the case if the interest of justice so requires." However, the Court finds that justice does not require the appointment of counsel in this case for the reasons set forth above. Accordingly, the Court denies the request for appointment of counsel.
XIX. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.