Opinion
No. 3-01-CV-1156-D
February 27, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Lewis Henry Cannon III was convicted of robbery following a jury trial. Punishment, enhanced by one prior felony conviction, was assessed at 40 years confinement. His conviction and sentence were affirmed on direct appeal. Cannon v. State, No. 05-99-00064-CR (Tex.App.-Dallas, Feb. 17, 2000, pet. ref'd). Petitioner also filed an application for writ of habeas corpus in state court. The trial court made written findings and recommended that the application be denied. The Texas Court of Criminal Appeals denied habeas relief without written order. Ex parte Cannon, No. 48, 990-01 (Tex.Crim.App. May 16, 2001). Petitioner then filed this action in federal court.
II.
In five grounds for relief, petitioner contends that: (1) he received ineffective assistance of counsel; (2) the indictment was defective; (3) the trial court failed to charge the jury on a lesser included offense; (4) the prosecutor was allowed to introduce evidence of profane, derogatory, and racially-charged statements made by petitioner; and (5) the trial court improperly denied his motion to suppress.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 stat. 1214 (1996). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court, and the petitioner must rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
Petitioner contends that his legal representation was deficient in numerous respects. Specifically, petitioner argues that counsel: (1) gave him erroneous advice regarding the range of punishment; (2) allowed the prosecutor to select a jury that did not represent a fair cross-section of the community; (3) failed to offer an altered version of the apprehension report into evidence; and (4) did not request a jury instruction on the lesser-included offense of theft.
1.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner first must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
2.
Petitioner first complains that his attorney, Gary P. Krupkin, gave him erroneous advice regarding his sentence exposure. In a letter dated October 16, 1998, Krupkin told petitioner that the range of punishment for robbery, a second-degree felony, was two to 20 years in prison. However, because the offense was enhanced by a prior felony conviction, petitioner faced a possible sentence of five to 20 years. (Hab. Pet., Exh. A). Petitioner has since learned that the range of punishment for this enhanced offense is five to 99 years or life imprisonment. See TEX. PENAL CODE ANN. §§ 12.42(b) 12.32(a) (Vernon 1994 Supp. 2001). Consequently, he maintains that the advice given by his attorney was constitutionally deficient.
Section 12.42(b) of the Texas Penal Code provides:
If it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first degree felony.
TEX. PENAL CODE ANN. § 12.42(b). The range of punishment for a first-degree felony is not less than five years nor more than 99 years or life imprisonment and a fine not to exceed $10,000. See id. § 12.32(a) (b).
Although Krupkin's letter misstates the range of punishment, counsel later advised petitioner "on numerous occasions" that his sentence exposure was five to 99 years or life in prison. As Krupkin explained to the state habeas court:
At all times I kept the Defendant fully and completely informed regarding all aspects of his case. It should be noted that the Assistant District Attorney, Mr. John Kull, Esq., offered a plea-bargain sentence of ten (10) years confinement in the Institutional Division. The Defendant refused this plea-bargain offer on numerous occasions. This is true although the Defendant was aware that he was charged with a second-degree felony offense with one (1) enhancement paragraph. I explained, on numerous occasions, that the range of punishment, with the enhancement paragraph, was 5 to 99 years or life in prison . . . I did not give the Defendant erroneous advice regarding sentencing. At all times I made absolutely certain that the Defendant was aware of the range of punishment. I communicated both in writing and verbally regarding the range of punishment.
(St. Hab. Tr. at 72-73). Indeed, petitioner now concedes that Krupkin verbally communicated the proper range of punishment to him, but suggests that this only contributed to his confusion. (Pet. Rep. at 5). The Court is not so convinced. Not only did counsel correct his prior misstatement regarding the range of punishment, but the trial judge addressed this issue with petitioner at his arraignment on December 14, 1998. The judge stated:
Mr. Cannon, you're charged with robbery which, as charged, is a second-degree felony. The range of punishment for a second-degree felony is two to twenty years in the penitentiary with an optional fine not to exceed ten thousand dollars; however, on your Indictment, there is also an enhancement paragraph which, if that is true, then that raises the range of punishment to a first-degree felony, which is five to ninety-nine years or life and an optional fine not to exceed ten thousand dollars.
(SF-II at 4). Based on this evidence, it appears that petitioner was fully aware of the range of punishment before entering a not guilty plea.
Petitioner engaged in an extensive colloquy with the trial judge regarding the effect of the enhancement allegations in the indictment. (SF-II at 5-8). However, he never asked any questions or appeared confused about the range of punishment upon conviction.
Even if Krupkin's initial misstatement rose to the level of ineffective assistance of counsel, petitioner has failed to establish prejudice. Petitioner does not allege that he would have accepted the state's 10-year plea offer had he known the correct range of punishment in October 1998. Nor is there any evidence that this plea offer was withdrawn at any time after petitioner learned that his sentence exposure was five to 99 years or life in prison. Petitioner states only that "he would have considered another option" had his lawyer advised him earlier regarding the proper range of punishment. (Pet. Rep. at 4-5). This vague and conclusory assertion is insufficient to merit habeas relief.
3.
Next, petitioner complains that his attorney allowed the prosecutor to select a jury that did not represent a fair cross-section of the community in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This issue also was litigated in the state habeas proceeding. Despite petitioner's failure to allege any facts in support of his claim, Krupkin explained why he did not challenge the prosecutor's use of peremptory challenges:
According to my trial notes, the Court brought sixty (60) persons to voir dire. of this number, there were forty-eight (48) persons within which a petit jury could be selected. The Defendant struck ten (10) jurors for cause. The Defendant struck several minority jurors himself. This included juror number 11, Sherice Duncan, an Afro-American female, and, juror number 19, Manuel Rodela, an Hispanic male. The State also struck juror number 11, Sherice Duncan. The State struck juror number 39, Jessica Rodriguez, an Hispanic female.
I believed the State exercised it' s [sic] strikes in a racially- and gender-neutral manner. There was nothing to indicate the State utilized it's [sic] strikes to remove minority-persons from the petit jury. Because it was my professional determination that the State exercised it's [sic] strikes in a proper manner, I did not lodge a Batson-challenge. Further, the Defendant did not complain about the composition of the petit jury. The Defendant provided his input regarding the peremptory challenges. We mutually agreed on the persons struck from the petit jury.
(St. Hab. Tr. at 71-72). The state habeas court found this explanation to be true, correct, and "dispositive of the allegation presented by Applicant relative to Mr. Krupkin." ( Id. at 67). Petitioner has failed offer any evidence, much less clear and convincing evidence, to rebut the presumption of correctness attached to this finding.
In his reply, petitioner concedes that the jury selection issue is "tenuous." However, he felt compelled to raise it "to bolster the claim of ineffective assistance of counsel." (Pet. Rep. at 5).
4.
Petitioner also criticizes his attorney for failing to offer an altered version of the apprehension report into evidence. At trial, Gregory Shelton and Mike Vassel, two loss prevention specialists for Home Depot, testified that petitioner made profane, derogatory, and racially-charged statements at the time of his arrest. In particular, petitioner allegedly called Shelton a "white mother f----" and referred to Vassel as an "Oreo," "n----," and "homosexual" (SF-IV at 49, 54). Petitioner also threatened to come back with his "troops" and "blast our asses." ( Id. at 49). On cross-examination by defense counsel, Shelton and Vassel acknowledged that none of these inflammatory remarks were contained in the original apprehension report. Instead, Shelton made notations on a copy of the report the day of trial "to get a better remembrance of the case." ( Id. at 75).Petitioner now believes that this altered version of the apprehension report should have been offered into evidence. However, defense counsel undoubtedly decided that it would be less harmful to question Shelton and Vassel about their handwritten notations rather than put the altered document before the jury. The Court agrees. This was a strategic decision by trial counsel that cannot be second-guessed on federal habeas review.
5.
Finally, petitioner contends that his lawyer failed to request an instruction on the lesser included offense of theft. Petitioner is mistaken. After both sides rested and closed, the trial court entertained objections to the jury charge. Defense counsel stated:
[DEFENSE COUNSEL]: Also, Your Honor, I would like a lesser included charge on the — on theft. And if the Court can give me about five minutes, I can real [sic] that lesser included offense charge into the record.
THE COURT: Well, that's fine, except for what is the evidence that, if he's guilty, he's guilty only of theft?
[DEFENSE COUNSEL]: Well, Your Honor, I believe that there is a fact question as to whether or not the Defendant bodily injured the — the complainants in this case. I believe that — that that is a fact question for the jury, judging the credibility of — of the actual witnesses who were able to testify to that.
Bodily injury, of course, or the threats of bodily injury are — are a key element of — of — of robbery, and we believe that — that the jury is going to be presented with a fact question as to — as to that.
THE COURT: Is there an objection from the State for the lesser included?
[PROSECUTOR]: Yes, Your Honor. I — I — I agree with the Court. If — if he's guilty of anything, it's going to be robbery, not the lesser included.
THE COURT: All right. Your request for a lesser included is denied.
(SF-V at 27-28). Clearly, defense counsel requested a jury instruction on the lesser-included offense of theft. This ground for relief is without merit and should be overruled.
C.
Petitioner further maintains that the indictment is constitutionally deficient. Specifically, he claims that the indictment does not allege sufficient facts to constitute a crime under state law or give fair notice of the charges against him.
1.
The sufficiency of an indictment is a matter of state law. Johnson v. Puckett, 930 F.2d 445, 447 (5th Cir.), cert. denied, 112 S.Ct. 252 (1991); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). A petitioner is not entitled to federal habeas relief unless the indictment is so defective that the state court lacks jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), cert. denied, 115 S.Ct. 157 (1994); Branch, 631 F.2d at 1233. An indictment that sets forth the elements of the offense in language clear enough to enable the defendant to plead a bar in jeopardy does not raise a jurisdictional defect. Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985). Furthermore, federal courts may not consider the issue if the highest state appellate court has reviewed the indictment and concluded that jurisdiction is proper. McKay, 12 F.3d at 68; Morlett v. Lynaugh, 851 F.2d 1521, 1523 (5th Cir. 1988), cert. denied, 109 S.Ct. 1546 (1989).
2.
Petitioner was charged with robbery, a second-degree felony under Texas law. A person commits robbery if: (1) in the course of committing theft, (2) and with the intent to obtain or maintain control of the property; (3) he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 29.02(a)(1) (Vernon 1994).
The indictment alleges that petitioner:
did unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of MICHAEL VASSELL [sic], hereinafter called complainant, the said property being a [sic] dimmer switches and a breaker switch, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there knowingly and intentionally cause bodily injury to the said complainant, by striking said complainant with his hand.
(St. App. Tr. at 2). Clearly, the indictment contains all the essential elements of the offense of robbery. Moreover, the trial court found that the indictment "tracks the statutory language applicable to the offense alleged in said Cause No. and sufficiently accused Applicant of a crime." ( Id. at 67). The Texas Court of Criminal Appeals adopted this finding by denying post-conviction relief. Ex parte Cannon, No. 48, 990-01 at cover. Since the issue was presented to the highest state appellate court for review, federal habeas relief is not proper. See Alexander, 775 F.2d at 599 (state court's refusal to grant habeas relief is tantamount to finding that indictment does not contain a jurisdictional defect).
D.
Next, petitioner complains that the trial court failed to instruct the jury on the lesser included offense of theft. According to petitioner, "the requested special instruction was justified because the issue of whether or not Mr. Vassel . . . had suffered bodily injury was a fact question for the jury to decide." (Hab. Pet. at 14).
This argument fails for at least two reasons. First, the failure to instruct a jury on a lesser included offense in a non-capital case does not implicate a federal constitutional right. Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988). Second, the evidence did not support a theft instruction. Shelton and Vassel testified that petitioner struggled when they tried to apprehend him. (SF-IV at 4546, 101-02). During this confrontation, petitioner struck Vassel in the arm and across part of his face. ( Id. at 101-02). No contrary evidence was presented by the defense. Consequently, a rational jury could not have concluded that petitioner was guilty only of theft. See United States v. Bailey, 111 F.3d 1229, 1238 (5th Cir.), cert. denied, 118 S.Ct. 327 (1997) (defendant not entitled to instruction on lesser included offense unless evidence is sufficient to allow jury to find him guilty of lesser offense, yet acquit him of the greater); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994) (same). This ground for relief is without merit and should be overruled.
E.
In two related grounds, petitioner contends that the trial court: (1) improperly admitted evidence of profane, derogatory, and racially-charged statements made by him; and (2) should have suppressed certain evidence.
1.
Federal habeas relief is available only to correct errors of constitutional dimension. 28 U.S.C. § 2254(a); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 104 S.Ct. 2367 (1984). A claim based on the misapplication of state law is not cognizable in a habeas proceeding unless the petitioner can establish that the error deprived him of a fair trial. Evans v. Thigpen, 809 F.2d 239, 242 (5th Cir.), cert. denied, 107 S.Ct. 3278 (1987); Matheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985), cert. dism'd, 106 S.Ct. 1798 (1986); see also Lucas v. Johnson, 132 F.3d 1069, 1082 (5th Cir.), cert. dism'd, 119 S.Ct. 4 (1998) (relief warranted only when the erroneous admission of evidence played a "crucial, critical [and] highly significant" role in trial).
2.
As previously discussed, Shelton and Vassel testified that petitioner made offensive, derogatory, and threatening statements at the time of his arrest. Defense counsel objected to this testimony as hearsay. He also argued that the prejudicial effect of petitioner' s remarks far outweighed any probative value. (SF-IV at 36, 46). Both objections were overruled and the statements were admitted into evidence. ( Id. at 37, 36).
The Court is unable to conclude that this ruling deprived petitioner of a fair trial. To the contrary, petitioner's verbal assault on Shelton and Vassel was admissible to show knowledge and absence of mistake. See TEX. R. EVID. 404(b) (character evidence admissible to show knowledge or absence of mistake). The threats of retaliation against these witnesses were probative of petitioner's intent to inflict bodily injury — an essential element of robbery. Id. (character evidence admissible to show intent). None of the remarks should have been excluded on hearsay grounds, as they were either excited utterances by petitioner or evidence of his state of mind. See TEX. R. EVID. 803(2) (3).
Nor did the threats against Shelton and Vassel constitute evidence of an extraneous offense. Significantly, the prosecutor did not ask either witness whether petitioner had been arrested or convicted on charges arising from the threats. Rather, it was defense counsel who asked Vassel whether petitioner had ever been charged with making a terroristic threat. (SF-IV at 122-23). The admission of this evidence was not contrary to clearly established federal law or otherwise unreasonable. See 28 U.S.C. § 2254(d); Lucas, 132 F.3d at 1082 (rejecting error based on admission of extraneous offense evidence when reference to other offenses was only implied).
Petitioner also complains that the trial court should have suppressed certain written and oral statements, admissions, and confessions allegedly made during a custodial interrogation. Although defense counsel filed a motion to suppress any such statements, the motion was withdrawn prior to trial because "we have seen no written or oral statements made by the Defendant . . ." (SF-II at 9). As a result, there was no need for the trial court to rule on the suppression motion. These grounds for relief are without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.