Opinion
CIVIL ACTION NO. 4:03-CV-428-A
December 16, 2003
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Jose Z. Cedillo, TDCJ-CID #888234, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Telford Unit in New Boston, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On November 10, 1998, Cedillo was driving a borrowed car. (4 Rep. R. at 14; 7 Rep. R. at Def.'s Ex. 2; Federal Pet. at 19.) Fort Worth Police Officer Theresa Martin saw Cedillo make an illegal turn and noticed that his rear license plate was not lighted. (4 Rep. R. at 14-16.) Officer Martin pulled Cedillo over. ( Id. at 19.) Cedillo told Officer Martin that the car was his and that he was going to get his daughter some medicine. ( Id. at 22-23.) Cedillo then told Officer Martin that he was sick, had chest pains, and had to go to the hospital. ( Id. at 23-24.) Cedillo was grabbing his thighs and arms, which made Officer Martin nervous, so she looked in the car and saw an open pocket knife. ( Id. at 24-25.) Officer ST. Rebrovich, who had responded to the scene, also saw the knife. ( Id. at 53-55.) When Officer Rebrovich opened the car door to get the knife, he saw plastic baggies with a white substance inside them. ( Id. at 57.) When Officer Rebrovich stated that he had found something in the car, Cedillo, who had gotten out of the car, fell to the ground. ( Id. at 29, 32.) Cedillo was taken to the hospital, and the plastic baggies were found to contain methamphetamine. ( Id. at 49, 87.)
Cedillo was indicted for possession with intent to deliver at least 4 but less than 200 grams of methamphetamine, with an enhancement paragraph. (State Habeas R. at 93.) Before trial, the trial court held a hearing on Cedillo's motion to suppress the seized drugs, which the trial judge denied. (2 Rep. R. at 47.) On June 9, 1999, a jury found Cedillo guilty and assessed his punishment at 99 years' confinement. (State Habeas R. at 94.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Cedillo's petition for discretionary review. Cedillo v. State, 33 S.W.3d 366 (Tex.App.-Fort Worth 2000, pet. ref'd). Cedillo filed an application for state habeas corpus relief, challenging his conviction, which the Court of Criminal Appeals denied without written order. Ex parte Cedillo, No. 55,130-01 (Tex.Crim.App. May 7, 2003) (not designated for publication). Cedillo filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on May 14, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). Dretke filed an answer, and Cedillo has replied.
Cedillo failed to serve Dretke with a copy of his response. Cedillo is advised that he is required to serve by mail upon Dretke a copy of all papers filed with the Court; thus, all future pleadings not including a proper certificate of service, indicating that such service has been accomplished, may be stricken from the record of this case. FED. R. Civ. P. 5. The Clerk is ORDERED to send a copy of Cedillo's November 25, 2003 response to Dretke.
D. ISSUES
Cedillo raises seven issues:
1. He was denied due process and a fair trial when the State planted false evidence against Cedillo and presented it at trial.
2. Favorable evidence was unconstitutionally excluded.
3. The trial court improperly commented on the weight of the evidence in the jury charge given at guilt-innocence.
4. The chain of custody on the methamphetamine was broken, which violated the Due Process Clause.
5. The search and seizure was unconstitutional.
6. Trial counsel was ineffective.
7. He is actually innocent.
E. RULE 5 STATEMENT
Dretke believes Cedillo has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-09; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en bane per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
3. Police and Prosecutorial Misconduct
Cedillo argues that he was denied due process and a fair trial because the police officers involved in Cedillo's case were part of a conspiracy to plant drug evidence against Cedillo because he refused to be a confidential informant for the police. He maintains that because of this conspiracy, the State presented false evidence to convict him. (Federal Pet. at 7, 10-19; Pet'r Resp. 5-11.) Cedillo's narrative of a far-reaching conspiracy against him is wholly conclusory and cannot support habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
4. Exclusion of Evidence
Cedillo asserts that favorable evidence was excluded at guilt-innocence, which violated due process. Specifically, Cedillo points to the trial court's exclusion of evidence that the car he was driving was not his and also evidence of his medical condition offered to rebut the State's implication that Cedillo faked his heart attack at the scene. ( Id. at 7, 20-21; Pet'r Resp. 12-15.)
In habeas actions, federal courts do not sit to review the mere admissibility of evidence under state law. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S. 1118 (1999). However, state courts' evidentiary rulings warrant habeas relief when errors are so extreme that they constitute a denial of fundamental fairness under the Due Process Clause. Id. In other words, habeas relief is warranted only when erroneous admission or exclusion played a crucial, critical, and highly significant role in the trial. Pemberton v. Collins, 991 F.2d 1218, 1227 (5th Cir.), cert. denied, 510 U.S. 1025 (1993); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983). Cedillo's constitutional rights are not implicated by the exclusion of the evidence. Cedillo's medical condition did not impact the fact that Cedillo possessed methamphetamine, and ownership of the car did not affect the legality of the search and seizure. Arizona v. Hicks, 480 U.S. 321, 326 (1987); Gochicoa v. Johnson, 118 F.3d 440, 447-48 (5th Cir. 1997), cert. denied, 522 U.S. 1121 (1998); United States v. Landry, 903 F.2d 334, 337-38 (5th Cir. 1990); see also Cedillo, 33 S.W.3d at 368.
5. Jury Charge
Cedillo asserts that the trial court denied him due process when it commented on the weight of the evidence in the jury charge given at the guilt-innocence phase of the trial. (Federal Pet. at 7, 21-22; Pet'r Resp. at 16-18.) Specifically, Cedillo points to the court's instructions that "[a] person's mental state may be inferred from words spoken and acts done" and that possession was a lesser included offense. (Clerk R. at 32-33.) The state court of appeals and the Court of Criminal Appeals rejected these arguments on direct appeal and on state habeas corpus review. Cedillo, 33 S.W.3d at 368. (State Habeas R. at 8, 24.) Cedillo has failed to rebut the presumption of correctness as to the state courts' adjudication of the claim. Moreover, the claim does not implicate a federal constitutional right. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (holding incorrect instruction under state law is not a basis for habeas relief). Texas courts are prohibited from commenting on the weight of the evidence as a matter of state law. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp. 2004). This court must defer to the state courts on matters of state statutory interpretation. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (per curiam); Fierro v. Lynaugh, 879 F.2d 1276, 1278 (5th Cir. 1989), cert. denied, 494 U.S. 941 (1990).
6. Chain of Custody
Cedillo argues that he was denied due process because there was no evidence the drugs found in the car were the same as the drugs admitted at trial, which he claims was a result of the defective chain of custody. (Federal Pet. at 8, 22-23; Pet'r Resp. 19-24.) Cedillo has shown neither a gap in the chain of custody nor that the drugs were altered to justify a conclusion that the evidence was improperly admitted. Even assuming that admission of the evidence was improper under state law, that would not in itself entitle Cedillo to habeas relief. To be cognizable in a federal habeas case, the petitioner must show that "the admission of the evidence rendered the trial fundamentally unfair or violated a specific constitutional right." Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985). Cedillo has not made that showing here.
7. Search and Seizure
Cedillo also argues that his conviction was unconstitutional because the evidence against him was obtained in violation of the Fourth Amendment. (Federal Pet. 27-29; Pet'r Resp. 29-31.) Federal courts have no authority to review a state court's application of Fourth-Amendment principles in habeas corpus proceedings unless the petitioner was denied a full and fair opportunity to litigate his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). The trial court conducted a pretrial hearing on Cedillo's motion to suppress the evidence and denied the motion. (Clerk R. at 4; 2 Rep. R. at 2-47.) This claim was also raised in Cedillo's first state habeas corpus application. (State Habeas R. at 29-32.) Because Cedillo was provided a full and fair opportunity to litigate his Fourth-Amendment claim in the state courts, it is barred from federal habeas corpus review. E.g., Janecka, 301 F.3d at 320-21.
Cedillo argues that a full and fair hearing was "negated." (Pet'r Resp. at 29-30.) However, there is no evidence that the state courts' reviews of the search and seizure were tainted, which arguably would still not operate to rule out application of the Stone bar. Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002), cert. denied, 537 U.S. 1196 (2003).
8. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST, amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Cedillo's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Cedillo asserts that trial counsel was constitutionally ineffective because he:
1. failed to object to the jury charge;
2. conducted an inadequate investigation and did not admit favorable evidence regarding his medical history and ownership of the car; and
3. did not introduce evidence at punishment of the conspiracy against Cedillo to rebut the enhancement allegation and unadjudicated extraneous offense evidence. (Federal Pet. at 29-35; Pet'r Resp. at 32-39.)
For the following reasons, Cedillo has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Cedillo first argues that counsel was ineffective for failing to object to the trial court's two comments on the weight of the evidence in the jury charge: that Cedillo's mental state could be inferred from his actions and that possession was a lesser included offense of possession with intent to deliver. (Federal Pet. at 30-31; Clerk R. at 32.) Even assuming that at the time of Cedillo's trial the mental-state instruction was an objectionable comment on the weight of the evidence, Cedillo has not shown that he was prejudiced by the inclusion of the instruction. Evidence at trial showed that Cedillo knowingly possessed large amounts of methamphetamine. (4 Rep. R. at 29-31, 55-56, 94-96.) TEX. HEALTH SAFETY CODE ANN. § 481.113(a) (Vernon 2003). Further, the instruction was "benign" and was a "mild, neutral, and . . . obvious common-sense proposition." Brown, 2003 WL 22849864, at *6-7.
Brown v. State, No. 059-03, 2003 WL 22849864, at *6 (Tex.Crim.App. Dec. 3, 2003); see also Ward v. State, 72 S.W.3d 413, 418 (Tex.App. — Fort Worth 2002, no pet.); Peterson v. State, 942 S.W.2d 206, 207-08 (Tex.App.-Texarkana 1997, pet. ref'd).
The possession instruction, which referred to its status as a lesser included offense, was not violative of Texas charge law or the United States Constitution. Cedillo, 33 S.W.3d at 368; Posey v. State, 840 S.W.2d 34, 40-41 (Tex.App.-Dallas 1992, pet. ref'd); 8 MICHAEL J. MCCORMICKET AL., TEXAS PRACTICE: CRIMINAL FORMS AND TRIAL MANUAL § 96.01 (Supp. 2003). Thus, counsel was not deficient for failing to object to the proper charge. Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996), cert. denied, 521 U.S. 1126 (1997). Further, Cedillo has failed to show prejudice by counsel's failure to object to this portion of the charge even if it were a comment on the weight of the evidence. As found by the state court of appeals, the possession instruction was never reached by the jury because Cedillo was convicted of possession with intent to deliver. Cedillo, 33 S.W.3d at 368.
Cedillo's next argument is that counsel was ineffective for failing to conduct an adequate investigation, which resulted in his failure to introduce evidence of his medical history and actual ownership of the car. (Federal Pet. at 32.) In order to establish that counsel was ineffective due to a failure to investigate the case or to discover and present evidence, Cedillo must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp.2d 661, 691 (S.D.Tex. 2001).
Regarding the medical records, counsel attempted to introduce approximately 85 pages of medical records dated from December 1998 to May 1999 showing that Cedillo had a heart condition and high blood pressure. (7 Rep. R. at Def.'s Ex. 1.) Counsel stated that these records would rebut the "clear inference . . . that Mr. Cedillo was faking a heart attack or chest pains in order not to get arrested, that he was being less than truthful to the police officer." (4 Rep. R. at 108.) The trial court stated that the testimony merely explained "why [Officer Martin] was nervous about the situation and called for backup" and did not admit the records based on the State's objection that they were not relevant to the time of Cedillo's arrest. ( Id. at 108-12.) Cedillo argues that "there was ample evidence available prior to November 10, 1998, by local doctors and clinics [regarding Cedillo's medical history]. Had [counsel] consulted a medical expert, he could have known which documents were material and what they expressed about petitioner's past, present, and future heart problems and high blood pressure, and just submitted those specific and material medical documents to be admitted at trial." (Federal Pet. at 32.)
Cedillo has failed to allege with specificity who counsel could have consulted with and that the records would have indeed shown Cedillo had a medical condition on the date of his arrest. Thus, Cedillo fails to establish either deficient performance or prejudice on these claims. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000). Further, counsel's proffer shows that he did, in fact, investigate Cedillo's medical history, which negates Cedillo's allegation of deficient performance. Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.), cert. denied, 464 U.S. 831 (1983).
Counsel was also not deficient for failing to successfully admit evidence that Cedillo did not own the car he was driving at the time of his arrest. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti, 102 F.3d at 170 (holding counsel not deficient for failing to object to proper jury instruction); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument). Counsel attempted to introduce evidence of the car's title, but the trial court sustained the State's objection to the exhibit because the original owner, Dennis Nichols, did not authenticate the exhibit. (4 Rep. R. at 109-10.) Cedillo argues that had counsel investigated and called Nichols as a witness, the ownership of the car would have been admitted into evidence. (Federal Pet. at 32.) But because the drugs were found in plain view in the car, the ownership of the car was not relevant to the issues before the jury. Hicks, 480 U.S. at 326.
Cedillo finally asserts that counsel was ineffective for failing to introduce evidence of the conspiracy against him to rebut the enhancement allegation and unadjudicated extraneous offense evidence. (Federal Pet. at 33-35; Pet'r Resp. at 37.) He focuses primarily on what Mike Kennedy, a former member of the narcotics task force, would have testified to regarding his attempts to recruit Cedillo as a confidential informant. (Pet'r Resp. at 37-38.) Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre, 238 F.3d at 635-36. For Cedillo to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witness would have testified. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Cedillo has failed to provide an affidavit or other evidence from Kennedy and only lists his bare assertions that Kennedy would have supported his conspiracy theory. The limited and conclusory information Cedillo provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp.2d 398, 400 (N.D. Tex. 2001).
9. Innocence
Cedillo argues that he is innocent of possession of methamphetamine with the intent to deliver. (Federal Pet. at 24-26; Pet'r Resp. at 25-29.) He asserts that this is a procedural claim of actual innocence and a free-standing, or substantive, innocence claim as well. (Pet'r Resp. at 25.) Actual innocence based on new evidence relevant to the guilt of a state prisoner is not cognizable on federal habeas corpus absent an independent constitutional violation occurring in the state trial. Herrera v. Collins, 506 U.S. 390, 400, 404 (1993); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995). Thus, Cedillo's substantive innocence claim fails to state a claim for federal habeas corpus relief. Lucas v. Johnson, 132 F.3d 1069, 1075-76 (5th Cir.), cert. dismissed, 524 U.S. 965 (1998). Additionally, Cedillo's procedural innocence claim fails as well because it has been determined above that no independent constitutional violation caused the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 314-16 (1995).
10. Summary
In sum, Cedillo is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Cedillo was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
G. EVIDENTIARY HEARING REQUEST
Cedillo requests that this court hold an evidentiary hearing on his claims. (Pet'r Resp. at 1,40.) A court shall not conduct an evidentiary hearing unless the petitioner failed to develop a claim in state court, provided that the claim relies on a new rule of constitutional law or on "a factual predicate that could not have been previously discovered through the exercise of due diligence" and the facts would "establish by clear and convincing evidence" the petitioner's actual innocence. 28 U.S.C. § 2254(e)(2); see also RULES GOVERNING SECTION 2254 CASES 8(a). Cedillo has failed to satisfy the statutory requirements. He has not demonstrated the existence of any factual disputes that warrant a federal evidentiary hearing.
II. RECOMMENDATION
Cedillo's petition for writ of habeas corpus should be denied.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until January 6, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en bane); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 6, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.