Opinion
No. 3:01-CV-0374-H
February 27, 2002
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
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Michael Anthony Campbell is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On May 30, 1996, the trial court convicted petitioner of aggravated robbery (Pet. for Writ of Habeas Corpus (Pet.) ¶¶ 2-6); Statement of Facts, Vol. I at 82 [hereinafter cited as SF-I]. The court sentenced him to fifteen years imprisonment and assessed a $500 fine. SF-I at 97.
Petitioner appealed his conviction. (Pet. ¶ 8.) On January 22, 1998, the Fifth District Court of Appeals of Texas at Dallas affirmed the conviction. Campbell v. State, No. 05-96-0965-CR, 1998 WL 19950, at 2 (Tex.App.-Dallas Jan. 22, 1998, no pet.) (not designated for publication). On October 27, 1999, the Texas Court of Criminal Appeals dismissed petitioner's first state petition for writ of habeas corpus, because his direct appeal was still pending. Ex Parte Campbell, No. 40, 190-03, slip op. at 1 (Tex.Crim.App. Oct. 27, 1999). On January 24, 2001, that court denied petitioner's second state petition for writ of habeas corpus without written order on the findings of trial court without a hearing. Ex Parte Campbell, No. 40, 190-05, slip op. at 1 (Tex.Crim.App. Jan. 24, 2001).
In February 2001, petitioner filed the instant petition for federal habeas relief. In June 2001, he filed a motion for summary judgment. On July 20, 2001, respondent filed an answer to the petition. She thereafter provided the state-court records. On July 25, 2001, petitioner filed objections to the answer. On November 14, 2001, he filed a motion for judgment as a matter of law.
Substantive Issues: Petitioner claims he is being held unlawfully because (1) the trial court erroneously admitted an exhibit into evidence; (2) the prosecutor engaged in misconduct by suppressing favorable evidence and making an improper misstatement of fact; and (3) his trial attorney rendered ineffective assistance.
Exhaustion: Respondent concedes that petitioner has sufficiently exhausted all state remedies for the claims raised in the instant petition.
II. Standard of Review
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
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.), cert. denied, 531 U.S. 849 (2000).
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.), cert. denied, 122 S.Ct. 194 (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." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, ___, 121 S.Ct. 1910, 1918 (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; see also, Penry, 532 U.S. at ___, 121 S.Ct. at 1918 .
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000), cert. denied, 121 S.Ct. 1420 (2001). 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.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (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)(1); see also, Sumner v. Mata, 449 U.S. 539 (1981).
Petitioner has raised all of his claims in his second state writ and supplement thereto. S.H. Tr. at 7-12, 88-92. The trial court submitted findings to the Texas Court of Criminal Appeals regarding the second state petition. Id . at 66-71. It found no erroneous admissibility ruling. Id . at 68. It found no ineffective assistance of trial counsel. Id . at 68-69. It found no prosecutorial misconduct. Id . at 69.
"S.H. Tr." refers to the state habeas record attached to Ex Parte Campbell, No. 40, 190-05, slip op. (Tex.Crim.App. Jan. 24, 2001).
The Texas Court of Criminal Appeals denied the state writ without written order on the findings of trial court. Ex Parte Campbell, No. 40, 190-05, slip op. at 1 (Tex.Crim.App. Jan. 24, 2001). In Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). In this instance, therefore, the state court rejected the instant claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
III. Examination of the Issues
Petitioner claims he is being held unlawfully because (1) the trial court erroneously admitted an exhibit into evidence — namely a credit card belonging to the complainant; (2) the prosecutor engaged in misconduct by suppressing favorable evidence and making an improper misstatement of fact; and (3) his trial attorney rendered ineffective assistance.
A. Admissibility of Evidence
Petitioner argues that the trial court erroneously admitted into evidence a credit card taken from the complainant during the aggravated robbery for which he was convicted. He contends that the credit card was unauthenticated and its chain of custody had been broken.
Evidentiary rulings made during a state trial are matters of state law that are not subject to re-examination by the federal courts. 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). In habeas actions, federal courts "do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding." Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000). The erroneous admission of prejudicial evidence "does not justify habeas relief unless the evidence played a "crucial, critical, and highly significant' role in the [verdict]." Id.
A petitioner is 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)); see also, Trevino v. Johnson, 168 F.3d 173, 184-85 (5th Cir. 1999) (applying the Brecht standard to a habeas petition filed after enactment of the AEDPA).
[U]nder Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict. We recognize, however, that if our minds are "in virtual equipoise as to the harmlessness," under the Brecht standard, of the error, then we must conclude that it was harmful.Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)). To be entitled to federal habeas relief due to a trial error, petitioner must show the error actually prejudiced him. Brecht, 507 U.S. at 637 .
"[A] federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling also violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair." Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997). A fundamentally unfair trial violates the Fourteenth Amendment right to due process. Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994). A trial is deemed "unfair" when it has been "largely robbed of dignity due a rational process." Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985) (citation omitted).
In this instance there appears to be no error in admitting the credit card. Petitioner contends that the trial court should not have admitted it due to a break in the chain of custody and a lack of authentication. The State, however, may lay an evidentiary predicate for the admissibility of a given piece of evidence in many ways, including establishing chain of custody or otherwise authenticating the proffered evidence. See TEXAS R. EVID. 901 (enumerating several illustrations "of authentication or identification"); see also, Simmons v. State, 944 S.W.2d 11, 12 (Tex.App.-Tyler 1996, pet. ref'd) (noting that, although "[t]he Rules of Evidence do not specifically address the chain of custody issue . . . they provide that the authentication or identification as a condition precedent to admissibility is satisfied if the evidence is sufficient to support a finding that the matter in question is what its proponent claims"). The Texas Rules of Evidence simply require that the proponent of the evidence present "evidence sufficient to support a finding that the matter in question is what its proponent claims." TEXAS R. EVID. 901(a). The State can accomplish this by presenting testimony from a witness with knowledge that an item "is what it is claimed to be." TEXAS R. EVID. 901(b)(1).
Rule 901 is entirely consistent with Texas law that had existed before the Texas legislature enacted the Rules of Evidence and that has been relied upon after such enactment. See Davis v. State, 992 S.W.2d 8, 11 (Tex App — Houston [1st Dist.] 1996, no pet.). The Texas courts have held that when an item "was easily identifiable and resistant to change, chain of custody was not required if there was direct evidence at trial that the same item was taken from the scene of the crime." Id.; see also, Thomas v. State, 701 S.W.2d 653, 659 (Tex.Crim.App. 1985); Atkins v. State, 515 S.W.2d 904, 906 (Tex.Crim.App. 1974) (holding that, ordinarily, when items "easily identifiable at trial as being the particular items originally recovered by the officers . . . the question of chain of custody is not involved). In addition, cases have held that "conflicts in the testimony regarding the chain of custody went to the weight of the evidence rather than to its admissibility." Davis, 992 S.W.2d at 11 . "Absent evidence of tampering, an objection that the State has failed to establish a proper chain of custody goes to the weight of the evidence rather than to its admissibility." Simmons v. State, 944 S.W.2d 11, 12 (Tex.App.-Tyler 1996, pet. ref'd).
There is no evidence of tampering in this case. Petitioner perceives tampering from speculation that the credit card may have been returned to complainant before trial. He supports that perception by referring to the following testimony of the complainant:
Q: Ms. Lawrence [(the complainant)], did you ever get your purse back?
A: Yes. The detective got my purse back.
Q: How about the money and the credit card that was inside it? Did the detective ever bring that stuff back to you?
A: The money — the grocery money was not brought back.
Q: You never got that back?
A. No.
SF-I at 15-16. While the testimony may lend itself to the conclusion reached by petitioner, the testimony does not directly address whether the detective returned the credit card. The testimony is ambiguous in that regard. In light of testimony from Officer Rebecca Williams that she recognized "State's Exhibit No. 1 (the credit card) and the envelope in which [she] brought it," id . at 59, the Court does not agree with the conclusion reached by petitioner. It does not appear from the record that the State returned the credit card to the complainant before trial.
Furthermore, assuming the truth of petitioner's allegation that the complainant indeed had her credit card returned before trial does not help petitioner. Such allegation standing alone simply does not demonstrate tampering. Petitioner neither alleges nor shows that the credit card was altered. He has provided no proof of tampering. He merely speculates about tampering. The Court finds the allegation of tampering unpersuasive. Whether the State established a proper chain of custody thus goes to the weight of the evidence rather than its admissibility. See Ensley v. State, ___ S.W.3d ___, ___, 2001 WL 777730, at ___ (Tex.App.-Houston [14 Dist.] 2001, no pet. h.). Petitioner's concern about a break in the chain of custody does not make the evidentiary ruling erroneous. A question about the chain of custody only affects admissibility, "upon a showing that an exhibit was tampered with or altered." Wortham v. State, 903 S.W.2d 897, 900 (Tex.App. — Beaumont 1995, pet. ref'd). Petitioner has shown neither.
The State met the threshold question of admissibility in this case by the testimony of Officer Williams. She testified that she and another Officer found "a credit card in the victim's name . . . in [petitioner's] vehicle." SF-I at 58-59. She positively identified the credit card admitted into evidence as the one she saw taken from petitioner's car. Id . The State thus had no need to establish a chain of custody to form the necessary predicate for admission of the credit card into evidence. After the testimony of Officer Williams, the weight accorded to the credit card and the testimony surrounding it was within the province of the trier of fact. Davis, 992 S.W.2d at 12 . When an officer identifies the proffered exhibit as the same item retrieved from a vehicle related to the crime, "chain of custody need not be shown." Outland v. State, 810 S.W.2d 474, 475 (Tex.App.-Fort Worth, 1991, pet ref'd). The testimony of Officer Williams provides a sufficient predicate for the admission of the credit card into evidence under TEXAS R. EVID. 901(b)(1).
The complainant also testified that the credit card had her name on it. SF-I at 11-12. Although she was confused as to whether she had her credit card or her son's credit card in her purse, she testified that both cards were on the same account. Id . at 12. She also testified that she had "a Discover card" in her purse on the date her purse was stolen, but she could not remember whether it was hers or her son's. Id . at 13. Although this testimony standing alone may be insufficient to lay a proper predicate for the admission of the credit card, it also does not make the credit card inadmissible in view of the testimony of Officer Williams. Any conflict between the testimony of the Officer and the complainant goes to the weight of the evidence not its admissibility.
Rule 901 "does not require the State to prove anything, but only requires a showing that satisfies the trial court that the matter in question is what the State claims." Silva v. State, 989 S.W.2d 64, 67-68 (Tex.App.-San Antonio 1998, pet. ref'd). The State satisfied that burden in this case. Consequently, there was no error in the admission of the credit card into evidence.
In view of the state ruling of admissibility and the denial of the second state petition for writ of habeas corpus, this Court will defer to the state-court determination of Texas law. Finding the evidence properly admitted under Texas law, the Court is unable to find petitioner's trial rendered fundamentally unfair by the state-court admissibility ruling. Petitioner is entitled to no habeas relief on the alleged error of state law.
The Texas Court of Criminal Appeals addressed this claimed trial court error on the merits and rejected it. Ex Parte Campbell, No. 40, 190-05, slip op. at 1 (Tex.Crim.App. Jan. 24, 2001). That adjudication does not appear inconsistent with precedent of the United States Supreme Court. It involves no unreasonable application of such Supreme Court. It appears based upon a reasonable determination of the facts in light of the evidence presented. Accordingly, under 28 U.S.C. § 2254(d), as amended by the AEDPA, petitioner may obtain no habeas relief on this claim.
B. Suppression of Evidence
Petitioner also claims that the prosecutor withheld a favorable police report that was material to his guilt or innocence. (See Pet. at 7.) He states that "said report was not in the prosecution's report nor was it part of the general record, or the trial record, therefore it could not have been made available to counsel for defense." ( Id.)
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. "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).
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.
No one provides the police report allegedly withheld from petitioner. Petitioner, nevertheless, contends that it contains evidence that contradicts testimony that the complainant was injured during the robbery. In his motion for summary judgment, he claims the police report contradicts the State's allegation of bodily injury. He contends that the State failed to prove that the complainant suffered alleged injuries at the robbery scene. He states that the police report shows that the complainant refused medical treatment at the scene and lists her condition as "Good."
The Court will assume that the police report is as stated by petitioner. It will also assume that the prosecutor withheld the document from petitioner. Respondent has not specifically responded to this claim. The Court must, therefore, determine whether the suppression of the report undermines confidence in the outcome of trial. The Court concludes that it does not undermine the outcome.
In Texas, a person commits robbery when he "in the course of committing theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent-bodily injury or death." TEX. PENAL CODE ANN. § 29.02(a) (Vernon 1994). When the victim is older than sixty-five years of age, the robbery becomes an aggravated robbery. Id . § 29.03(a)(3)(A). In this instance, the alleged suppression of evidence goes to the bodily-injury requirement of the offense.
Assuming that petitioner could have gotten the police report or its contents admitted into evidence, the trial record would then show that the complainant refused medical treatment at the scene and reported her condition as "Good" — at least according to petitioner. The complainant, however, specifically testified at trial that, as she was getting into her car after shopping, someone grabbed her purse, pulled her down, and she fell. SF-I at 8. She testified that, after she fell, she called for help and someone came from the store to help. Id . at 9. She testified that they called home for her and "someone from my home came and took me home." Id . She also testified that she got hurt when she hit the ground and had to go to the hospital. Id . at 9-10. Specifically, she testified that she broke her hip and finger and chipped an elbow. Id . at 10. She testified that she stayed in the hospital or a nursing home from the date of the offense, March 16, 1996, through May 1, 1996. Id . An eyewitness who stopped to assist the complainant also testified that when she "arrived at the scene" the complainant "was in a lot of pain." Id . at 45.
In view of the testimony of the complainant and the corroborating testimony of the eyewitness who stopped to help her, the Court does not find that the information within the police report creates a reasonable or significant probability of a different outcome at trial.
The decision of the state court finding no prosecutorial misconduct is consistent with Brady and its progeny. The state decision involved no unreasonable application of Supreme Court precedent. The adjudication of the claim 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. Petitioner is entitled to no federal habeas relief on this claim.
C. Improper Remark in Closing Argument
Petitioner further claims that the prosecutor engaged in misconduct by making an improper misstatement of fact in closing argument. Specifically, he contends that the
State had burden . . . to prove beyond a reasonable doubt that [he] "knowingly and intentionally" caused bodily injury by pulling on complainant's purse causing her to fall to the ground, as alleged in the indictment. Prosecutor's use of the term "knocked to the ground" varied from the allegations of the indictment and was prejudicial.(Pet.'s Brief in Supp. at 6.) In his motion for judgment as a matter of law, he argues that the comments of the prosecutor constructively amended the indictment and thus deprived him of due process. (Mot. for J. at 2.) He further argues that the prosecutor committed misconduct "by putting into the mouth of witnesses words that the witnesses had not said." (Id . at 4.)
"Prosecutorial misconduct implicates due process concerns." Foy v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992). Statements of a prosecutor may violate due process in two ways: "They may abridge a specific right conferred by the Bill of Rights, or may constitute a denial of due process generally, thus constituting a `generic substantive due process' violation." Id . (quoting Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988)). The Court should "first determine the type or types of misconduct alleged, because `[t]he case law supplies a different test for each kind of due process violation.'" Id . (quoting Rogers, 848 F.2d at 608). In this case, petitioner alleges a general violation of due process.
When a petitioner asserts a generic due process violation, the Court asks whether the prosecutorial comments "so infected the trial with unfairness asto make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In the habeas context, the appropriate standard of review for such allegations is "the narrow one of due process, and not the broad exercise of supervisory power." Id. (quoting Donnelly 416 U.S. at 642).
In federal habeas actions, improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner's state court trial was rendered fundamentally unfair within the meaning of the Fourteenth Amendment's Due Process Clause. To establish that a prosecutor's remarks are so inflammatory as to prejudice the substantial rights of a defendant, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred.Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986) (citations omitted). "A trial is fundamentally unfair if there is a reasonable probability that the verdict might have been different had the trial been properly conducted." Foy, 959 F.2d at 1317 (internal quotation marks omitted).
This is the only test necessary to apply for generic violations of due process. If the alleged misconduct rises to the level of constitutional error, the Court need not apply a harmless error test. Darden, 477 U.S. at 183 n. 15. The Fifth Circuit Court to Appeals has observed, furthermore, that application to a harmless error test would be "superfluous" after a determination that the trial was rendered fundamentally unfair. Kirkpatrick v. Blackburn, 777 F.2d 272, 280 (5th Cir. 1985).
In this case, petitioner contends that the prosecutor engaged in misconduct when he stated in closing argument that petitioner knocked the complainant to the ground. The prosecutor indeed stated in closing: "the State would argue that the victim in this case . . . stated very plainly that she didn't get a real good look at the person since she was knocked down and considerably injured in this." SF-I at 80. The prosecutor further argued that "Lily Rendon saw the entire incident happen and identified Mr. Campbell as the person that did it. She saw him knock Ms. Lawrence down." Id . at 81.
The prosecutor appears to have only made statements he believed to be supported by the evidence. An assertion of what the prosecutor believes the evidence has shown is not error. Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir. 1987). In this instance, moreover, the trial testimony totally supports the statements. The complainant testified that someone "pulled" her down and she fell. SF-I at 8. Ms. Rendon testified at trial that she saw petitioner "push" the complainant "down" to the ground. Id . at 41-42. She later indicated that she saw petitioner "from the time he knocked the lady down." Id . at 51. The prosecutor made no improper misstatement of fact.
That the complainant did not use the identical words utilized by the prosecutor in closing argument does not improperly put words into her mouth or constructively amend the indictment. The difference between being "pulled" and "knocked" down is minimal in the context of this case. To hold otherwise would place semantics over substance. There was no constructive amendment of the indictment, because petitioner was not convicted "upon a factual basis that effectively modifie[d] an essential element of the offense charged." See United States v. Holley, 23 F.3d 902, 912 (5th Cir. 1994) (holding that the indictment is constructively amended upon such a conviction).
Habeas relief is not warranted for petitioner's claim that the statements of the prosecutor violated his rights to due process, in the general sense. The statements did not render petitioner's trial fundamentally unfair. Petitioner has shown no persistent misconduct by the prosecutor. Prosecutors do not engage in misconduct by making statements in closing argument that are supported by the trial record.
The trial court found no prosecutorial misconduct. The Texas Court of Criminal Appeals rejected the claim on the merits when it denied the state petition without written order on the findings of the trial court. Neither exception to the general prohibition against habeas relief for claims adjudicated on the merits appears to apply to the instant petition. The decision on the merits appears consistent with clearly established federal law of the United States Supreme Court. It involves no unreasonable application of clearly established federal law. It also appears based on a reasonable determination of the facts. The record firmly supports the denial of the claim. Under 28 U.S.C. § 2254(d), petitioner may obtain no federal relief on his claim of prosecutorial misconduct, as it was adjudicated on the merits by the state courts.
D. Ineffective Assistance of Trial Counsel
In the instant petition, petitioner raises four specific grounds for finding that his trial attorney rendered ineffective assistance. He argues that counsel (1) failed to conduct an independent investigation; (2) failed to conduct pretrial discovery; (3) failed to interview state eyewitnesses; and (4) failed to file pretrial motions. (See Pet. at 7.)
In his Brief in Support of his petition, petitioner elaborates a small amount on some of these grounds. (Pet.'s Brief in Supp. at 4-6.) He contends that his attorney offered no rebuttal evidence to the State's case, "that could have been easily gained from an independ[ent] investigation of the facts." (Id. at 4.) He contends that, had counsel had a "full command of the facts he could have offered rebutt[al] evidence" to the two witnesses who identified him and to the testimony of the investigating officer regarding the obtainment of the warrant for his arrest. ( Id .) He claims the facts do not support testimony from the eyewitnesses and investigating officer that they identified petitioner two or three days after the date of the offense. ( Id .) He asserts that an arrest warrant had been issued for his arrest on the same date of the offense, not two to three days later. ( Id .) He further claims that counsel showed "a lack of command of the facts by failing to address the "chain of custody' and `tampering' question." ( Id. at 5.) He asserts that counsel failed to address the question of bodily injury and failed "to object to prosecutor injecting new and harmful element not alleged by the complainant or indictment." ( Id .) Specifically, he claims the prosecutor's "use of the term "knocked to the ground' was harmful where no such element was alleged." ( Id .) In addition, he claims that counsel failed to make "any attempt to interview eye-witnesses" and failed "to offer any written statements or depositions taken from witnesses." ( Id .) He asserts that the foregoing failures to develop "a proper defense creates a very strong presumption that counsel failed in his investigative duties, rendering his assistance at trial ineffective." ( Id . at 6.)
Petitioner also mentions in his motion for summary judgment that counsel failed to use the suppressed police report to cross-examine the State's witnesses with respect to her bodily injury. (Mot. Summ. J. at 4.)
The above allegations of ineffective assistance of counsel fall into four broad categories: (1) failures to object; (2) failure to use evidence; (3) failures to investigate; and (4) failure to file pre-trial motions.
The trial court found no ineffective assistance of trial counsel. S.H. Tr. at 68-69. The state disposition of the ineffective assistance claims raised by petitioner appears consistent with existing precedent of the United States Supreme Court. Such disposition involves no unreasonable application of clearly established precedent of the United States Supreme Court. Nor does it appear to be based upon any unreasonable determination of the facts in light of the evidence presented.
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 the Strickland test requires a finding that counsel's performance was constitutionally effective. Id . at 696. 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. 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). 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 the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented [at trial]," confidence in the trial's outcome would be undermined. See Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). 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).
1. Failures to Object
Petitioner argues that his attorney rendered ineffective assistance when he failed to address the issues of chain of custody and tampering. The Court construes such argument as suggesting failures to object. Petitioner, furthermore, specifically argues that his attorney failed to object to the prosecutor's comment that he "knocked" the complainant to the ground.
Under Strickland, petitioner must establish both that "his attorneys acted objectively unreasonably in failing to object and that he was prejudiced by the failure." Vuong v. Scott, 62 F.3d 673, 684 (5th Cir. 1995) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In this case, petitioner has not shown that his attorney acted objectively unreasonable in failing to object to the admission of the credit card on grounds of a break in the chain of custody or tampering. As already thoroughly discussed, chain of custody was not an issue in view of the testimony of Officer Williams. As for the alleged tampering, no evidence of record supports such allegation. Failing to assert a meritless or futile objection "cannot be grounds for a finding of deficient performance." Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997).
Petitioner has likewise not shown that his attorney acted objectively unreasonable in failing to object to the prosecutor's statements. As already discussed, the testimony presented at trial supported the statements. An eyewitness testified that she saw petitioner from the time he "knocked" the complainant down. The prosecutor's use of the phrase "knocked to the ground" thus appears based upon specific trial testimony. His statements were not improper. Defense counsel did not need to object to the statements to render effective assistance of counsel. An objection to the statements would have been without merit.
Petitioner, furthermore, has not carried his burden under Strickland's second prong to show that he was prejudiced by his counsel's actions. To show prejudice, based on his attorney's omission, petitioner must establish that objecting would have created a reasonable probability that the outcome of the trial would have been different. His argument presupposes that the trial court would have sustained a contemporaneous objection. The Court finds petitioner's assumption that the trial court would have sustained the objections to be based on pure speculation. Petitioner cannot establish prejudice with mere speculation or conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Rather he must establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 689 . He has not done so here. That "the trial could have resulted differently", as alleged by petitioner in his objections to respondent's answer does not satisfy Strickland.
For the forgoing reasons, this Court finds that the state court's denial of petitioner's claimed ineffective assistance neither contrary to Strickland nor an unreasonable application of it. Accordingly, this claim should be denied.
2. Failure to Use Evidence
Petitioner argues that his attorney rendered ineffective assistance when he failed to use an allegedly suppressed police report to cross-examine the witnesses of the State. In the context of prosecutorial misconduct, the Court has already found that the information within the police report does not create a reasonable or significant probability of a different outcome at trial. Consequently, this claim of ineffective assistance of counsel must necessarily fail. Petitioner has not shown a reasonable probability that, but for counsel's failure to use the police report to cross-examine the State's witnesses, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). The Court need not address this claim more fully in view of the thorough discussion in the context of suppression of evidence.
3. Failures to Investigate and File Pre-trial Motions
Petitioner alleges several failures to investigate by counsel. He also alleges that counsel failed to file pre-trial motions. Petitioner, however, has demonstrated no prejudice from these alleged deficiencies of counsel. The Court, furthermore, finds these claims of ineffective assistance conclusory. Petitioner provides no support for them. Claiming that an attorney failed to investigate, without more, is insufficient to find that the attorney rendered ineffective assistance. Petitioner has identified no exculpatory witness or what evidence such a witness would provide that would have altered the outcome of his trial. He has not identified what evidence would have been produced by further investigation that would have altered the outcome of his trial. He has identified no pretrial motions that his attorney should have filed. Nor has he made any attempt to show that any such motions would have created a reasonable probability that the outcome of his trial would have been different. "[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.), cert. denied, 531 U.S. 849 (2000). Attorneys, furthermore, are "not required by the Sixth Amendment to file meritless motions." United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
The Court, nevertheless, notes that petitioner testified at trial that counsel attempted to subpoena petitioner's friend who purportedly could have provided an alibi, but the friend would not appear because of warrants for his arrest. SF-I at 68. Petitioner further testified at trial that he had loaned his car to "T-Bone" and counsel unsuccessfully tried to find — him. Id . at 69-73. Although such testimony provides some detail as to what witnesses might have exculpated him, the testimony also directly contradicts allegations that counsel failed to investigate these individuals and attempt to call them as witnesses.
In his brief in support of his petition, petitioner emphasizes trial testimony that indicates that Officer Williams interviewed the eyewitnesses "two or three days" after the incident. Petitioner contends that such testimony is contrary to the facts as he was arrested the day after the incident. He argues that counsel rendered ineffective assistance by not addressing this issue and not discovering it before trial. The Court addresses this argument separately, because petitioner places so much emphasis on it in his brief.
Petitioner is correct that there is testimony that Officer Williams interviewed the witnesses "two or three days" after the incident. See SF-I at 24, 45. The record also supports finding that he was arrested on March 17, 1996, the day after the incident. Despite the emphasis placed on this discrepancy by petitioner, however, he does not show how further investigation would have created a reasonable probability that the outcome of his trial would have changed.
Petitioner also does not show how addressing the issue would have altered the outcome. Ms. Rendon specifically testified that she thought "it was a couple of days after" the incident when she spoke to Officer Williams. Id . at 45. She was not definite. The other eyewitness was also not precise. She testified that she spoke to the officer "about two or three days after this happened." Id . at 24. Officer Williams did not specify precisely when she interviewed the two eyewitnesses, although she testified that after the interviews she "had an arrest warrant issued for [petitioner's] arrest." Id. at 58. Trying to impeach the imprecise testimony given on this minor discrepancy would serve no useful purpose. The discrepancy between the trial testimony and the date of actual arrest appears to be nothing more than innocent misrecollection. It provides no basis to impeach the witnesses to such an extent that the outcome of trial would have differed.
Under Strickland, petitioner is entitled to no habeas relief on these alleged deficiencies, because he has demonstrated no prejudice from them. He has not affirmatively shown prejudice. He has not shown a reasonable probability that the outcome of his trial would have been different in the absence of the alleged deficiencies. He presents nothing to undermine confidence in the verdict.
IV. 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.
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. It is further recommended that the Court DENY with prejudice petitioner's motion for summary judgment filed June 27, 2001, and his motion for judgment as a matter of law filed November 14, 2001.