Opinion
CIVIL ACTION NO. 4:01-CV-517-A.
March 8, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner James Paul White, TDCJ-ID #831529, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Gib Lewis Unit in Woodville, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
White was indicted for two counts of aggravated sexual assault with a deadly weapon, i.e., a box cutter, and one count of aggravated sexual assault by threats and placing in fear. (State Habeas R. at 54.) After a trial, the jury found White guilty of all three counts and assessed punishment at 30 years' confinement on each count. ( Id. at 56-57.)
White appealed and argued that counsel was ineffective for (1) failing to conduct a thorough voir dire examination, (2) failing to object to the State's prejudicial characterization of the crime scene, (3) failing to object to the car registration evidence, (4) failing to object to the State's questioning of a punishment witness, (5) opening the door to admission of his prior DWI arrest, and (6) arguing to the jury that White needed jail time. (Br. of Appellant at 5-6.) The Seventh District Court of Appeals affirmed the judgment, and the Texas Court of Criminal Appeals refused White's petition for discretionary review. White v. State, 999 S.W.2d 895 (Tex.App.-Amarillo 1999, pet. ref'd). White filed one state application for writ of habeas corpus and argued that trial counsel was ineffective for (1) allowing a less experienced attorney to conduct the trial, (2) failing to investigate the case, (3) conducting an improper voir dire examination, (4) not pursuing the motions filed by his first attorney, (5) opening the door to admission of his prior DWI arrest, (6) arguing to the jury that jail time was needed, and (7) failing to object to the indictment. (State Habeas R. at 9-27.) The Court of Criminal Appeals denied the application without written order on the findings of the trial court. Ex parte White, No. 49, 472-01 (Tex.Crim.App. June 6, 2001) (not designated for publication). White filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on June 16, 2001. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
The appeal was transferred from the Second District Court of Appeals by the Texas Supreme Court. (Clerk R. at 183.)
D. ISSUE
White argues that trial counsel were constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell believes White has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254 (d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
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).
2. Procedural Default
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254 (b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 160 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Whether exhaustion has been satisfied cannot depend upon whether the state court chooses to ignore in its opinion a federal constitutional claim squarely raised by the applicant. Castille v. Peoples, 489 U.S. 346, 350 (1989) (9-0 decision).
White argues that counsel was ineffective for failing to offer evidence to counter the victim's story and failing to object to the introduction of evidence of the box cutter even though it had been illegally seized. (Pet'r Mem. at 15-17.) White did not raise these allegations in either his petition for discretionary review or his state habeas corpus application. White also argues that counsel was ineffective for failing to (1) interview and call as witnesses a cab driver, the victim's boyfriend, White's supervisor, and three character witnesses and (2) investigate the evidence from the hospital or the police search of his truck. ( Id. at 11, 15-17; Pet'r Reply Br. at 4-5, 10-14.) Although White argued in his state habeas application that counsel failed to investigate, his argument focused solely on counsel's ignorance of the State's file and the facts of the case. In other words, he did not specify which witnesses counsel should have investigated and called or what specific evidence would have been discovered at the hospital or about the search. (State Habeas R. at 10.) Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, White cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
White has not given any explanation to excuse his default. Indeed, any problem with trial counsel was known to White before he filed his state habeas corpus application. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are procedurally defaulted.
3. 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 (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). In the case of ineffective assistance during the punishment phase, prejudice is established if "there is a reasonable probability that but for trial counsel's errors the defendant's non-capital sentence would have been significantly less harsh." Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. 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.
White's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254 (d)(2).
White argues that Leland Gjetley was ineffective for transferring control of White's case to his junior associate, Patrick Davis. White further asserts that Davis was constitutionally ineffective because he:
1. failed to conduct an independent investigation;
2. did not properly voir dire the veniremembers;
3. did not object to the State's inflammatory reference to the crime scene;
4. argued at punishment that White should be incarcerated for "a long time"; and
5. did not pursue the pretrial motions Gjetley filed.
For the following reasons, White has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
First, White argues that Gjetley breached his employment contract with him when he allowed Davis to assume the duties of lead counsel in preparing and trying the case. (Pet'r Mem. at 4, 8-9.) The Court of Criminal Appeals, by relying on the trial court's findings, found that White knew he had hired Gjetley's firm to represent him and not a specific lawyer. (State Habeas R. at 49, 53.) Davis repeatedly met with White before trial, and White never complained that Gjetley was not present. ( Id.) In fact, even if Gjetley had been present at the trial, Davis would have been lead counsel, and the trial strategy would have remained unchanged. ( Id.) White has failed to rebut the presumption of correctness of these findings and has failed to show any prejudice from Gjetley's absence.
White next asserts that counsel failed to conduct an adequate investigation. He specifically argues that Davis did not investigate the facts of his case. (Pet'r Mem. at 4, 11, 20-21.) Davis's affidavit shows that he did investigate White's case: "Mr. White and I visited the crime scene together in preparation for trial. . . . I was provided with all police reports, witness statements, physical evidence, lab reports, [and] witness lists. . . . I also had access to the District Attorney's file whenever I wanted. . . ." (State Habeas R. at 37-38.) Again, the state courts credited counsel's version of events, which is presumed correct. 28 U.S.C. § 2254 (e)(1). ( Id. at 49-50, 53.) The intermediate court of appeals also stated that it was unable to hold that counsel had failed to adequately investigate the case. White, 999 S.W.2d at 900. Further, the investigation detailed in counsel's affidavit is sufficient to survive a Strickland deficiency review. E.g., Soria v. Johnson, 207 F.3d 232, 251 (5th Cir.), cert. denied, 530 U.S. 1286 (2000).
White argues that Davis's voir dire of the jury panel was shoddy because (1) he never questioned three of the veniremembers who were eventually seated on the jury and (2) failed to "qualify" the venire regarding the punishment range or whether they had ever been victims of sexual assault. (Pet'r Mem. at 13-14.) As the court of appeals pointed out, the State questioned the venire about punishment options. White, 999 S.W.2d at 898. (2 Rep. R. at 53-58.) Thus, it was not deficient for counsel to decline to repeat questions that had already been asked of the venire. Further, an attorney's actions during voir dire are considered to be matters of trial strategy. Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). A decision regarding trial tactics cannot be the basis for a ineffective-assistance claim unless counsel's decision is shown to be so ill chosen that it permeates the entire trial with obvious unfairness. Id. White has failed to rebut the presumption that counsel's actions were the result of trial tactics and has also neglected to prove he was prejudiced by counsel's voir dire examination. Nguyen v. Reynolds, 131 F.3d 1340, 1349-50 (10th Cir. 1997), cert. denied, 525 U.S. 852 (1998); Teague, 60 F.3d at 1172-73; see also White, 999 S.W.2d at 898.
White's next assertion is that counsel should have objected to the State's reference to the crime scene as the "Amber Hagerman" location, which was an infamous child murder case that occurred in the same area. (Pet'r Mem. at 17-18.) As the court of appeals held, there is no indication in trial record what counsel's motivation was or the significance of a "Hagerman" reference. White, 999 S.W.2d at 899. White has failed to prove deficient performance or prejudice. E.g., Knox v. Johnson, 224 F.3d 470, 480 (5th Cir. 2000), cert. denied, 532 U.S. 975 (2001).
White contends that counsel was ineffective for arguing at punishment that he should be incarcerated for "a long time." (Pet'r Mem. at 20.) Although counsel did argue that a short period of incarceration would benefit White, this was clearly a strategy by counsel, which this court will not second-guess. (5 Rep. R. at 89-90.) Wilson v. Butler, 813 F.2d 664, 670-71, cert. denied, 484 U.S. 1079 (1988); Thompson v. Johnson, 7 F. Supp.2d 848, 865-66 (S.D. Tex. 1998).
Finally, White asserts that he received ineffective assistance of counsel when-Davis failed to pursue the pretrial motions Gjetley had filed. (Pet'r Mem. at 20; Pet'r Reply Br. at 14-15.) The Court of Criminal Appeals credited Davis's statements that he did not pursue the motions because he and the State were able to agree on many of them. (State Habeas R. at 50.) Davis cannot be held deficient for failing to urge motions that had already been favorably resolved. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument). White has failed to rebut the presumption of correctness of this finding with clear and convincing evidence and, thus, has failed to show any prejudice.
4. Summary
In sum, White is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that White 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.
G. INJUNCTIVE RELIEF
On February 6, 2002, White filed a motion seeking DNA testing (Docket Entry #25) and a motion requesting that this court bar the State from destroying any biological evidence relating to his conviction (Docket Entry #27). In essence, White is seeking injunctive relief in the form of DNA testing on himself and on any biological evidence collected during the investigation of his case in order to prove his innocence. By order of this court, Cockrell filed a response to White's injunctive motions on March 5, 2002.
Issuance of a preliminary injunction falls within the sound discretion of the Court and is an extraordinary remedy that should only be granted if the movant clearly shows: (1) a substantial likelihood that he will succeed on the merits; (2) that he will suffer irreparable harm unless the injunction issues; (3) that the potential injury outweighs possible harm to the opposing party; and (4) that the injunction would not be adverse to the public interest. Lindsay v. City of San Antonio, 821 F.2d 1103, 1107 (5th Cir. 1987). Notwithstanding the fact that the petitioner is attempting to seek relief that appears inappropriate and unavailable in the habeas corpus proceeding, it is clear from a review of White's motions, in conjunction with the merits of White's habeas corpus petition, that he has failed to state a prima facie case for injunctive relief. The granting of injunctive relief is not appropriate; thus, no hearing was held on the motions.
See TEX. CODE CRIM. PROC. ANN. art. 64.01(a) (Vernon Supp. 2002) (stating motion for biological testing is to be filed in the "convicting court").
II. RECOMMENDATION
Cooks injunctive motions (Docket Entry #25 #27) and petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until March 29, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 29, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.