Opinion
CIVIL ACTION No. 1:01-CV-023-C.
May 4, 2002
ORDER
Petitioner, Randal Franklin Caraway (Caraway), flIed a Petition for a Writ of Habeas Corpus by a Person in State Custody, together with numerous exhibits. Respondent filed an answer and relevant state court records. Caraway responded to Respondent's answer.
Respondent has lawful custody of Caraway pursuant to a judgment and sentence of the 91st District Court of Eastland Coimty Texas. Caraway was indicted for murder with three prior felony convictions alleged for enhancement of punishment. Caraway pleaded not guilty to the charged offense and was found guilty by a jury on March 22, 1996. At the punishment phase of trial, Caraway pleaded true to two of the enbancement paragrapbs and punishment was assessed at 99 years' confinement in the Texas Department of Criminal Justice, Institutional Division.
Caraway appealed his conviction and the conviction was affirmed by the Eleventh Court of Appeals of Texas on December 17, 1998. Caraway's petition for discretionary review was
refused by to Texas Court of Criminal Appeals on April 28, 1999. The United States Supreme Court denied Caraway's petition for writ of certiorari on December 6, 1999.
Caraway filed one state habeas application on September 21, 2000. The Texas Court of Criminal Appeals denied the state habeas application without written order on December 20, 2000.
The Court has reviewed Caraway's petition, Respondent's answer, Caraway's response, Caraway's exhibits, and the state court records submitted by Respondent.
STANDARD OF REVIEW
Caraway's petition is subject to review under to Antitenozism and Effective Death Penalty Act of 1996 (AEDPA). Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). The AEDPA enacted the present 28 U.S.C. § 2254(d), which provides that a state prisoner may not obtain federal habeas 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 to 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 proceedings.
Thus, § 2254(d) applies only to claims "adjudicated on the merits" in to state courts. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000). "The term `adjudication on the merits,' . . . refers solely to whether the state court reached a conclusion as to the substantive matter of a claim, as opposed to disposing of the matter for procedural reasons." Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2000), reh'g denied, Apr. 12, 2002.
For cases found to have been adjudicated on the merits in state court, the Supreme Court has detennined that a federal court may grant a writ under the § 2254(d)(1) "contrary to" clause, only "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." William v. Taylor, 529 U.S. 362, 413 (2000). "Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court has] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.s. 782, 121 S.Ct. 1910, 1918 (2001) (citing Williams v. Taylor, 527 U.S. at 410-11).
Pure questions of law and mixed questions of law and fact should be reviewed under § 2254(d)(1), while pure questions of fact should be reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Ok. 2000); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
The "denial" of habeas reief by the Texas Court of Criminal Appeals serves, under Texas law, to dispose of the merits of the state habeas claim. Jackson v. Johnson, 150 F.3d 520, 524 (5th Ok. 1998). See Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (holding that "denial" signifies the court addressed and rejected the merits of a claim, while "dismissal" means the court declined to consider the claim for reasons unrelated to the merits). If faced "with a silent or ambiguous state habeas decision, the federal court should `look tbrough' to the last clear state decision on the matter" to determine whether the state court decision was procedural or substantive. Jackson v. Johnson, 194 F.3d 641, 651 (5th Or. 1999).
"When one reasoned state court decision rejects a federal claim . . . orders upholding that judgment or rejecting the same claim are considered to rest on the same ground as did the reasoned state judgment." Bledsue v. Johnson, 188 F.3d 250, 256 (5th Ok. 1999). This "look through" doctrine enables a federal habeas court "to ignore — and hence, look through — an unexplained state court denial and evaluate the last reasoned state court decision." Id.
In reviewing a state prisoner's habeas petition, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998).
"The presumption of correctness . . . now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those Endings of fact are presumed to be correct." Valdez v. Cockrell, 274 F.3d at 949.
The Court has reviewed the state court records and finds that the record is clearly adequate to dispose of Caraway's claims without the necessity for an evidentiary hearing
CARAWAY'S ALLEGATIONS
Caraway states his federal habeas grounds as follows:
(1) illegal Custodial Interrogations
(2) Incomplete Investigation
(3) Suppression of Favorable Evidence
(4) Subornation of Perjury
(5) No Evidence
(6) Juzy Charge issues
(7) Reasonable Doubt
(8) Judicial and Prosecutorial Misconduct
(9) Ineffective Assistance of Counsel (Trial and Appellate)
(10) Effective Cross-Examination
(11) Cumulative Errors
For supporting facts and a discussion of each of the above grounds, Caraway refers to his Brief in support of his petition and to his state habeas application, which he submitted as Bxbibit Fx-7.
BACKGROUND
Caraway was convicted by a jury on March 22, 1996, for the offense of murder. At the punishment phase of trial, Caraway pleaded true to the enhancement allegations and the jury found two prior felony conviction enhancement allegations to be true. The jury also made an affirmative finding that Caraway "caused the death under the immediate influence of sudden passion arising from an adequate cause."
Caraway was initially arrested for the felony offense of forgery. After he was arrested and advised of his rights and invoked his right to counsel, he spoke to law enforcement officers four times concerning the disappearance of Tammy Deneen Bryan (Bryan). As a result Caraway gave an oral confession during the third session indicating that he caused the death of Bryan. The third session ended with Caraway directing officers to a garbage pit in a rural location. Bryan's body was recovered from the pit wrapped in a quilted blanket as Caraway had described to the officers.
The fourth session occurred two days later, at which time Caraway gave a written statement.
In response to a motion to suppress filed by Caraway's attorney, the trial court held a suppression hearing on February 9, 1996. Caraway contended that his oral and written statements were the result of an illegal custodial interrogation, were made without an affirmative waiver of rights, were obtained in violation of state law, and were made after he had invoked his right to counsel. Caraway testified at the suppression hearing for the limited purpose of explaining whether or not he waived his rights regarding the police interviews and subsequent oral and written confessions. After hearing all the testimony, the trial court denied Caraway's motion to suppress.
Caraway's oral and written statements were introduced at trial Caraway did not testify at the trial.
On direct appeal, Caraway contended that the trial court erred in admitting his oral and written statements. The Eleventh Court of Appeals at Eastland found the record reflected that
[w]hile he was incarcerated in the Eastland County Jail on a forgery charge, appellant spoke to officers four times concerning the disappearance of Tammy Deneen Bryan.
. . .
Officer Preston and Chief Fairbanks testified that appellant initiated the second, third, and fourth sessions. Officer Preston also testified that he gave appellant Miranda warnings at the beginning of each session and that appellant waived his rights at each session. Appellant testified that he had not asked Officer Preston to come back for the third session and that he had requested counsel during the third and fourth sessions.
In overruling Caraway's argument that his right to counsel was denied at the third and fourth sessions, the appellate court found that
[t]he record reflects that appellanthad invoked his right to counsel at the beginning of the first session; however, the record supports the trial court's Endings that he initiated the subsequent sessions.
The appellate court further found that Caraway's "initials appear beside the written admonishments at the top of his written confession, and the record supports the trial court's findings that appellant had waived these rights."
Caraway also argued on direct appeal that the evidence was insufficient to support his conviction. After reviewing the evidence presented at trial, the appellate court found that "a rational finder of fact could have found that appellant committed the offense alleged," and that the evidence was legally sufficient to support the conviction.
Caraway challenged the trial court's admission of an autopsy of the victim and the appellate court found that the trial court did not abuse its discretion in overruling the appellant's objection and admitting the photograph.
In his final point on direct appeal, Caraway argued that the testimony that he had previously choked the victim was inadmissible. The appellate court disagreed and found that the trial court had properly held the testimony was admissible.
Caraway's conviction was affirmed on direct appeal and Caraway's petition for discretionary review was refused by the Texas Court of Criminal Appeals on April 28, 1999.
The issues raised in this federal habeas action were raised by Caraway in his state habeas proceeding. The Texas Court of Criminal Appeals denied the state writ without written order.
DISCUSSION
(1) Illegal Custodial Interrogations
Caraway alleges that he was subjected to illegal custodial interrogations which resulted in an illegal oral confession, statements regarding the location of the victim's body, and subsequent written confession. He challenges the state trial court's denial of his motion to suppress and the state appellate court's findings that Caraway initiated the conversations with police alter he bad invoked his right to counsel He further argues that the trial court failed to make specific findings regarding the issues raised in his motion to suppress.
When . . . a trial court fails to render express findings on credibility but makes a ruling that depends upon implied determination that credits one witness's testimony as being truthflul, or implicitly discredits another's, such determinations are entitled to the same presumption of correctness that they would have been accorded had they been made explicitly."Lavernia v. Lynaugh, 845 F.2d 493, 500 (5th Cir. 1988) (citing Marshall v. Lonberger, 459 U.S. 422, 433-34 (1983)) (court is presumed to have implicitly found facts necessary to support its conclusions).
"If a defendant voluntarily and without police prompting initiates a conversation . . . any resulting statements are admissible against the defendant at trial." United States v. Avants, 278 F.3d 510, 515 (5th. Cir. 2002). "(interrogation of the accused must cease upon invocation of his Fifth Amendment . . . right to counsel unless the accused initiates further communication, exchanges or conversations with the police." Mann v. Scott, 41 F.3d 968, 975 (5th Cir. 1994) (citing Edwards v. Arizona, 451 U.S. 477, 485 (1981). Further, "if the defendant voluntarily and without police prompting initiates a conversation about the charged offense [Sixth Amendment right to counsel] . . . any resulting statements are admissible against the defendant at trial." United States v. Avant, 278 F.3d at 515.
After considering the testimony, evidence, and arguments of counsel, the trial court entered its written Order Denying Motion to Suppress. The trial court found
That prior to the making of such statements, by Defendant and prior to any questioning of Defendant, said Defendant was given by the person taldng statements, all of the advice, information and warnings required by the Constitution and laws of the State of Texas and the United States of America pertaining to the questioning of accused persons and pertaining to the taking of statements from such persons, and such advice, information and warnings complied with and satisfied the requirements set out and made in the applicable decisions ofthe appellate courts of the State of Texas and of the United States of America.
That said Defendant intelligently and with full knowledge and understanding of his rights pertaining to the making of such statements, waived his right to remain silent, his right to consult with an attorney and all other rights guaranteed him in connections (sic) with the making of such statements.
The trial court finds that the Defendant voluntarily made the statements and signed the written statement after the same had been reduced to writing, and that such statement was made and signed by the Defendant after all applicable provisions of the Texas Code of Criminal Procedure had been complied with, and in compliance with all applicable decisions of the Texas Court of Criminal Appeals and the Supreme Court of the United States of America.
On direct appeal, the Eleventh Court of Appeals found that
(t]he record reflects that the appellant had invoked his right to counsel at the beginning of the first session; however, the record supports the trial court's findings that he initiated the subsequent sessions . . . the record supports the trial court's findings that appellant had waived [his] rights.
The state trial and appellate courts are presumed to have implicitly found facts necessary to support their conclusions and such findings are, therefore, entitled to a presumption of correciness. Mann v. Scott, 41 F.3d at 976. This Court has reviewed the transcript of the suppression hearing and the record in this case and finds that Caraway has offered no evidence to overcome this presumption; therefore, his claims alleging illegal custodial interrogations must fail.
(2) Incomplete Investigation
Caraway alleges that the state's pre-trial investigative procedures were improper and suggestive, thus creating false testimony calculated to manufacture circumstantial evidence against him. His claim is based upon an allegation that police officers allegedly admitted that an autopsy might not show murder, and that there was a conflict in the autopsy report because it stated there was no evidence of anytraunia, but then also indicated that death of the victim was caused by manual strangulation.
Caraway also alleges that an allegedly incomplete investigation by police officers precluded the introduction of evidence that would have supported his claim of self-defense. The evidence which the police allegedly failed to investigate were a knife which Caraway claims was used by the victim to cut him and a police officer's testimony regarding Caraway's claim of self-defense. This evidence was presented during trial and was before the jury for its consideration.
To establish a failure to investigate claim, Caraway "must allege with specificity what the investigation would have revealed and how it would have benefitted him." United States v. Glinsey, 209 F.3d 386, 393 (5th Cir.), cert. denied, 531 U.S. 919 (2000).
Caraway's claim was raised in his state habeas proceeding. The denial of relief was an adjudication on the merits, and Caraway has failed to show that the determination was based on an unreasonable determination in light of the evidence presented at trial. Caraway's claim regarding an incomplete pre-trial investigation is denied.
(3) Suppression of Favorable Evidence
Caraway alleges that the state suppressed favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). He claims that the state suppressed the interrogation tapes, certain police reports, letters from the pathologist, bloody clothes, witness statements, and jail reports. A review of the trial record indicates that Caraway's attorney referred to this evidence during trial and some of the evidence was actually included in the record. There was evidence that the tapes had been lost and Caraway has not produced any evidence to the contrary.
To prevail under Brady, Caraway must show "(1) that the prosecution failed to disclose evidence, (2) that the evidence was favorable to his defense, and (3) that the evidence was material." East v. Scott, 55 F.3d 996, 1002 (5th Ok. 1995). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome of the trial. Id. Caraway has failed to meet these requirements.
(4) Subornation of Perjury
Caraway alleges that the prosecution knowingly used false and misleading testimony.
"In order to prove that the State has violated the Fourteenth Amendment by relying on [perjured] testimony, the defendant must demonstrate: (1) that a witness for the State testified falsely; (2) that such testimony was material; and (3) that the prosecution knew that the testimony was false." Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000) (citing Giglio v. United States, 405 U.S. 150, 153 (1972)), cert denied, ___U S. ___, 121 S.Ct. 1610 (2001).
Perjury or false testimony is not established simply because there is contradictory testimony from witnesses, inconsistencies within a witness's testimony, or conflicts between reports, written statements and trial testimony. Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). Contradictory testimony merely creates a credibility question for the jury. Id.
Caraway has failed to meet his burden to show that his due process rights were violated by the alleged use of false testimony.
(5) No Evidence
Caraway claims there was no evidence to support his murder conviction. The Eleventh Court of Appeals, on direct appeal, found there was sufficient evidence to support his conviction.
"Habeas relief under section 2254 on a claim of insufficient evidence is appropriate only `if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt'" West v. Johnson, 92 F.3d 1385, 1393 (5th Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 317 (1979)). "A determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Carter v. Johnson, 131 F.3d 452, 460 (5th Or. 1997).
"[S]ufficiency of the evidence may only be raised on direct appeal and not in state habeas." West v. Johnson, 92 E.3d at 1398, n. 18. Caraway challenged the sufficiency of the evidence in his direct appeal.
In reviewing claims of insufficient evidence to support a state court conviction, a federal habeas court must determine whether; viewing the evidence in a light most favorable to the prosecutor, any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt. Donahue v. Cain, 231 F.3d 1000 (5th Or. 2000).
Caraway alleges that the state failed to prove that Bryan's death was caused by strangulation; however, the evidence supports the jury's finding.
The court of appeals concluded that the evidence was legally and factually sufficient to sustain Caraway's conviction. Further, this Court has reviewed the record before it and finds that a rational juror could have found Caraway guilty of murder.
(6) Jury Charge Issues
Caraway challenges the jury charge submitted to the jury, claiming that the charge should have contained an instruction regarding "accident." He further claims that he did not receive a full, fair and impartial jury determination because "much of the evidence established at trial, especially through defense counsel's arguments, were never presented in the court's charge."
"The mere fact that the trial court failed to elaborate or enlarge its instructions beyond setting forth the statutory elements of the offense does not constitute constitutional error." Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980).
There is nothing in the record to indicate that Caraway requested a jury instruction regarding "accident" Further, no objection was made to the charge based upon this argument
Caraway's challenge to the jury charge is procedurally barred. Livingston v. Johnson, 107 F.3d 297, 311 (5th Cit 1997) (challenge to jury charge is procedurally barred by failing to make a contemporaneous objection at trial).
(7) Reasonable Doubt
Caraway claims that "the prosecution presented no physical, medical or scientific evidence linking [him] to the crime of murder by strangulation," and that no reasonable fact finder would have found him guilty. He further claims that the jury convicted him based upon circumstantial evidence and the facts in evidence raised substantial doubt as to his guilt
The Court finds that ibis claim is the same as Caraway's no-evidence or sufficiency-of the-evidence claim, and is without merit for the reasons set forth under his "no-evidence" claim discussed above.
(8) Judicial and Prosecutorial Misconduct
Caraway raised numerous allegations of judicial and prosecutorial misconduct and claims that the cumulative effect denied him the right to a fair trial. He refers to his state petition for a statement of his claims. He has listed 15 alleged instances of what he perceives to be judicial misconduct and 34 alleged instances of prosecutorial misconduct.
The conduct of a trial judge can violate due process only if the judge so favors the prosecution that the judge appears to predispose the jury toward the finding of guilt or to take over the prosecutorial role. Derden v. McNeel, 978 R2d 1453 , 1459 (5th Cir. 1992).
Alleged prosecutorial misconduct is reviewed to determine whether the trial was so infected with unfairness as to result in a denial of due process. Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000). cert. dismissed, 531 U.S. 1134 (2001). To be fundamentally unfair, there must be a reasonable probability that the verdict might have been different if the trial had been properly conducted. Id.
This Court has reviewed the record in its entirety. Caraway's claims alleging error on the part of the trial court and the prosecutor are without merit.
(9) Ineffective Assistance of Counsel (Trial and Appellate)
In his brief supporting his habeas petition, Caraway refers to his state habeas petition regarding his ineffective assistance of counsel claims. According to Caraway, in his summary of total claims, he has alleged a total of 78 instances of ineffective assistance on the part of trial and appellate counsel.
The Supreme Court, in Stricldand v. Washington, 466 U.S. 668, 687 (1984), established a two-prong standard for ineffective-assistance-of counsel claims. First, Caraway must demonstrate that his counsel's performance was deficient and, second, that the deficient performance prejudiced the defense. To show that the performance was deficient, Caraway must show that "counsel made errors so serious that counsel was not functioning as the "counsel' guaranteed the defendant by the Sixth Amendment" Id. To show prejudice, Caraway must show that his counsel's "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Deficient performance will be found to be prejudicial only upon a showing that but for counsel's errors, there is a reasonable probability that the final result would have been different and that confidence in the reliability of the verdict is undermined. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Armstead v. Scott, 37 F.3d 202, 206-07 (5th Cir. 1994).
A defendant must show "actual prejudice" as a result of his counsel's deficient peifonnance. Moody v. Johnson, 139 E.3d 477, 482 (5th Cir. 1998). Caraway is required to show "that the attorney's errors were so deficient as to render the verdict fundamentally unfair or unreliable." Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997). This "performance inquiry" is to be made applying a reasonableness standard; i.e., was counsel's assistance reasonable under all the circumstances, making the assessment, not in hindsight but evaluating the conduct from counsel's perspective at the time of the conduct. Thus, the reviewing court is to be highly deferential in scrutinizing counsel's performance. Strickland, 466 U.S. at 688-89.
"The failure to prove either deficient performance or actual prejudice forecloses an ineffective assistance claim." Green v. Johnson, 160 F.3d 1029 (5th Cit. 1998), cert denied, 525 U.S. 1174 (1999). See Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997) (stating that the presence or absence of prejudice at either trial or appellate level hinges upon the fairness of the trial and the reliability of the verdict). It is not necessaxy, however, for a disirict court to address both requirements of the conjunctive Strickland standard when addressing an ineffective assistance claim; such a claim may be disposed of solely on a petitioner's failure to meet either requirement. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).
A petitioner must affirmatively prove and not merely allege prejudice. Mangum v. Hargett, 67 E.3d 80, 84 (5th Cir. 1995); Deville v. Whitley, 21 f.3d 654, 659 (5th Cir. 1994). See Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (stating that the Fifth Circuit requires an appreciable showing of prejudice).
Conclusory allegations unsupported by any specific facts do not merit a federal court's attention. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cit. 1983); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) ("mere conclusoiy allegations on a critical issue are insufficient to raise a constitutional claim"); Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (finding "speculation" of ineffective assistance to be no basis for habeas relief).
When a habeas petitioner alleges ineffective assistance of appellate counsel for failure to raise an issue on appeal, the court examines the merits of the omitted issue. A failure to raise frivolous issues does not amount to ineffective assistance. Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995). Nor is counsel "deficient for failing to raise every meritorious claim that
may be pressed on appeal." Green v. Johnson, 116 F.3d 1115, 1125-26 (5th Cir. 1997). Further, when a reviewing court does not find prejudice from trial counsel's error, by extension, it cannot find prejudice from appellate counsel's error predicated on the same issue. Mayabb v. Johnson, 168 F.3d 863, 869 (5th Cir. 1999).
Caraway's right to effective assistance of appellate counsel must meet the Strickland standards andhe must "demonstrate that (1) his appellate counsel's performance was so deficient as to fall below objectively reasonable conduct of appellate counsel and (2) his case was prejudiced as a result" Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994).
"[T)he presence or absence of prejudice, both with respect to claims of ineffective assistance of counsel at the trial and appellate levels, hinges upon the fairness of the trial and the reliability of the judgment of conviction resulting therefrom." Goodwin v. Johnson, 132 F.3d at 174.
The Court has reviewed the state court records in their entirety and the submissions of the parties. Caraway has not made the requisite showing that his attorneys' performances were deficient or that he suffered actual prejudice.
(10) Effective Cross-Examination
In this claim, Caraway asserts that Officer Fairbanks was "spoon-fed" his testimony, resulting in a denial of effective cross-examination. This claim is without merit.
(11) Cumulative Errors
Throughout his brief in support of his federal habeas petition, Caraway refers to his state habeas petition for a discussion of his claims. Under his "cumulative errors" argument he provides a numerical summary of his claims. According to Caraway, he has raised 183 alleged errors, and he claims that the cumulative effect of those errors denied him the right to a fair and impartial trial.
If a petitioner fails to establish any error, there is nothing to cumulate. United States v. McIntosh, 280 F.3d 479, 484 (5th Or. 2002); Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993) (explaining that because certain errors were not of constitutional dimension and others were meritless, petitioner "has presented nothing to cumulate").
Caraway has failed to establish any error; therefore, there is nothing to cumulate.
CONCLUSION
For the reasons stated above, the Court finds that Caraway's petition for writ of habeas corpus should be denied and this case dismissed with prejudice.
SO ORDERED.