Opinion
No. 3:03-CV-229-P.
October 19, 2004
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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Andy Chavez is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
On February 22, 1999, Chavez and Angie Cantu were at a night club in Dallas. (3 R.R. at 33-34.) Based on information that a man at the club in a blue Camaro had a gun, Dallas Police Officer Michael Maness attempted to search Chavez, who was in a blue Camaro, for weapons. (2 R.R. at 87-91.) Chavez, however, resisted the search, and when Chavez reached in his waist band, Officer Maness drew his gun. ( Id. at 91-93.) After other officers arrived, Officer Maness discovered that Chavez had an outstanding arrest warrant. ( Id. at 95.) Officer Maness placed Chavez under arrest and, pursuant to a search incident to arrest, found cocaine in a small zipper pouch that fell out of the bottom of Chavez's pant leg. ( Id. at 96-101.)
Chavez was indicted for possession of 4 grams or more but less than 200 grams of cocaine. (State Habeas R. at 99.) Cantu testified that Officer Maness's searches of Chavez did not uncover any contraband and implied that the cocaine was planted on him after an officer took Chavez across the street to conduct a further search. (3 R.R. at 35-37.) Cantu admitted that she was taken into custody for public intoxication that night. ( Id. at 37, 45.) A jury found Chavez guilty, and the trial court sentenced him to 25 years' confinement. (State Habeas R. at 104.) After the appeal was transferred from the Fifth District Court of Appeals, the Third District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Chavez's petition for discretionary review on June 13, 2001. Chavez v. State, No. 3-00-225-CR (Tex.App.-Austin Feb. 1, 2001, pet. ref'd) (not designated for publication). Chavez filed a state application for habeas corpus relief, challenging his conviction; the Court of Criminal Appeals denied the application without written order on the findings of the trial court. Ex parte Chavez, No. 53,403-01 (Tex.Crim.App. Oct. 16, 2002) (not designated for publication). Chavez filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on February 1, 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). Because the District Court determined that Chavez's petition was not time-barred (Docket Entry Nos. 10, 22), this court now addresses Chavez's claims.
Issues
Chavez raises four issues:
1. The search and seizure, which resulted in the discovery of the cocaine, violated the Fourth Amendment.
2. Trial counsel was constitutionally ineffective.
3. Appellate counsel was constitutionally ineffective.
4. The Third District Court of Appeals did not have jurisdiction over his appeal.
Exhaustion of State Court Remedies
Dretke believes Chavez has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.Standard of Review
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 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc 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).
Fourth Amendment
Chavez asserts that his conviction was obtained through the use of evidence, i.e., the cocaine, that was unconstitutionally obtained because the search was without consent and went beyond the scope of a proper search. (Pet'r Mem. at 3-10.) Chavez did not attack the constitutionality of the search and seizure until he filed his state habeas corpus application. A federal court cannot entertain a Fourth-Amendment claim brought by a habeas petitioner attacking his state court conviction if the petitioner had an opportunity for full and fair litigation of that claim in the state courts. Stone v. Powell, 428 U.S. 465, 495 (1976); Jones v. Johnson, 171 F.3d 270, 278 (5th Cir.), cert. denied, 527 U.S. 1059 (1999). When a defendant fails to raise his Fourth-Amendment claim at trial, Stone bars habeas relief on Fourth-Amendment grounds, even though no state hearing was held on the claim. Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978). Because Chavez had 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 v. Cockrell, 301 F.3d 316, 320-21 (5th Cir. 2002), cert. denied, 537 U.S. 1196 (2003).
Appellate Court Jurisdiction
Chavez argues that the Third District Court of Appeals did not have jurisdiction over his appeal and failed to properly follow procedures under Anders. (Pet'r Mem. at 28, 30-31.) Under state law, the appeal was properly transferred from the Fifth District Court of Appeals to the Third District Court of Appeals, which vested that court with jurisdiction over Chavez's appeal. TEX. GOV'T CODE ANN. §§ 73.001, 73.002 (Vernon 1998). Chavez's further argument that the state court of appeals violated Anders is purely a question of state law and is not cognizable on federal habeas corpus. Smith v. Robbins, 528 U.S. 259, 272-76 (2000); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Molo v. Johnson, 207 F.3d 773, 775-76 n. 9 (5th Cir. 2000) (per curiam); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983), cert. denied, 469 U.S. 873 (1984). Additionally, the record reveals that the state appellate court did all it was required to do under established state procedures. Downs v. State, 137 S.W.3d 837, 839 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
Anders v. California, 386 U.S. 738, 744-45 (1967).
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.
Chavez'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).
Trial Counsel
Chavez asserts that trial counsel was constitutionally ineffective when he:
1. did not challenge the illegal search and seizure;
2. did not raise a Batson objection;
3. failed to object to the State's impeachment of Cantu;
4. failed to interview and call Domingo Reyes and Maria Sanchez as defense witnesses;
5. did not object when the State called Chavez a drug dealer during voir dire; and
6. failed to ask the trial court to state its reasons for imposing a 25-year sentence or seek a continuance of the punishment hearing.
Chavez first asserts that counsel should have challenged the illegal search and seizure. (Pet'r Mem. at 12-15.) On habeas review, counsel stated that he did not seek to suppress or otherwise challenge the cocaine evidence because "the search was incident to an arrest based on a valid warrant." (State Habeas R. at 97.) The state habeas courts credited counsel's statements and concluded that he was not ineffective. ( Id. at 94-95.) Chavez has failed to overcome the factual findings supporting this conclusion with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Indeed, nothing in the record shows that a motion to suppress would have been successful. Thus, counsel was not ineffective on this basis. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (holding petitioner must show underlying Fourth-Amendment claim is meritorious and verdict would have been different absent the challenged evidence to prevail on claim counsel was ineffective for failing to raise Fourth-Amendment challenge); Garland v. Maggio, 717 F.2d 199, 205 (5th Cir. 1983) (holding petitioner not prejudiced by counsel's failure to move to suppress the fruits of a search and arrest where no basis to challenge arrest).
Chavez next argues that counsel did not effectively pursue his Batson challenge to the jury after the State struck two black veniremembers. (Pet'r Mem. at 15-20; Pet'r Traverse at 3-4.) Counsel objected to the State's peremptory challenges to two black veniremembers, and the State responded that it had struck the veniremembers because their families had prior dealings with the criminal justice system and because of the State's evaluation of their credibility. (2 R.R. 74-75.) Chavez argues that counsel should have established that the State's reasons for the strikes were not race-neutral. A state violates a defendant's rights under the Equal Protection Clause if it strikes potential jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Under Batson, a defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Id. at 96-97. If that showing is made, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. Id. at 97-98. In light of the parties' submissions, the trial court must then determine whether the opponent of the strike has proved purposeful racial discrimination. Id. at 98. The critical question at step three is the persuasiveness of the prosecutor's justification for his peremptory strikes. Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003). Implausible or fantastic justifications are usually pretexts for purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam). The Batson determination is primarily based on the trial court's evaluation of the credibility of counsel's explanations. United States v. Wallace, 32 F.3d 921, 925 (5th Cir. 1994).
The State also attempted to strike another black veniremember because he "appeared to be inattentive during jury selection." (2 R.R. at 74.) However, the State withdrew the strike, and that veniremember was eventually seated on the jury. ( Id. at 75; C.R. at 38.)
Chavez has provided no proof to support his contention that counsel should have or could have shown that the State's peremptory strikes were not race-neutral. See Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.) (holding juror's involvement with criminal justice system is race-neutral explanation for strike), cert. denied, 506 U.S. 942 (1992). Further, the record supports the race-neutral basis found by the trial court. (2 R.R. at 37-39.) Thus, counsel's objections to the strikes were not deficient and did not prejudice Chavez.
Chavez argues that a similarly-situated white veniremember also had family members who had been charged with criminal offenses but was not struck by the State. (Pet'r Traverse at 3-4.) But there is no evidence that this veniremember was white. Further, the State's reasons for striking the two veniremembers precludes a finding of racial discrimination in the absence of further evidence. Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992).
Chavez also asserts that counsel was ineffective when he used a peremptory challenge to strike a Hispanic veniremember. (Pet'r Mem. at 16, 19; C.R. at 37.) However, the striking of a single minority veniremember without more is insufficient to establish a prima facie case that the veniremember was struck for racial reasons. Batson, 476 U.S. at 96. Chavez has failed to show either deficient performance or prejudice regarding counsel's unexplained strike of the veniremember.
Chavez next argues that counsel was ineffective for opening the door to the State's impeachment of Cantu with her public intoxication at the time of Chavez's arrest. Under Texas law, the State could have impeached Cantu's testimony with evidence that she was so intoxicated at the time of Chavez's arrest that she could not accurately testify to the facts. 1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE § 607.4 (3d ed. 2002). Thus, Chavez was not prejudiced by counsel's questions to Cantu about her intoxication at the scene. Further, counsel's strategy could have been to minimize the damaging effect of Cantu's intoxication by eliciting the information first. This strategy cannot be second-guessed.
Chavez asserts that counsel was ineffective for failing to interview and call as witnesses Domingo Reyes and Maria Sanchez. (Pet'r Mem. at 22-23; Pet'r Traverse at 2-3, 4-5.) Reyes was present when Chavez was searched and arrested and believed that Chavez did not have drugs on him at the time of the search. (Pet'r Mem. at Ex. B.) According to his affidavit, he also appeared intoxicated. ( Id.) 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 v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001). For Chavez 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). Chavez has failed to provide an affidavit or other evidence from Sanchez and only lists his bare assertion that she would have supported his statements. Additionally, Reyes's testimony would have been cumulative of Cantu's testimony, as is shown by the similarity of their affidavits, and he would have been subject to the same intoxication impeachment as Cantu. ( Id.) Thus, Chavez cannot show prejudice by the failure to call either Reyes or Sanchez.
Chavez argues that because counsel did not object to the State's remark during voir dire that Chavez was a drug dealer, he was constitutionally ineffective. (Federal Pet. at Ground Two.) Because Chavez fails to specify where in the record the alleged reference occurred and because he fails to state any further argument in support of his claim, it is conclusory and cannot support habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam). Further, a review of the State's voir dire shows that Chavez was not referred to as a drug dealer. (2 R.R. at 15-56.) Thus, this claim is meritless.
Chavez's final attack on counsel's performance is that, at punishment, he failed either to request that the court explain on the record why it imposed a 25-year sentence or request a continuance of sentencing to ensure that the court did not consider inadmissible evidence. (Pet'r Mem. at 24-27; Pet'r Traverse at 5.) In the case of ineffective assistance during the punishment phase, prejudice is established if a petitioner demonstrates that his sentence was increased by the deficient performance of his attorney. Glover v. United States, 531 U.S. 198, 200, 203-04 (2001). In other words, the petitioner must show that counsel's deficiencies created a reasonable probability that his sentence would have been less harsh. See id. at 200. Even if counsel were deficient under Strickland, Chavez cannot show prejudice given that he pleaded true to two enhancement paragraphs, which elevated the punishment range for his offense to a first-degree felony, and the trial court's sentence was at the low end of statutory punishments available. In other words, there is no showing that but for trial counsel's alleged error, the trial court would have imposed a lower sentence. See Glover, 531 U.S. at 204 (in discretionary sentencing system, holding amount by which a defendant's sentence is increased may be a factor to consider in determining whether counsel was ineffective and implying it could bar prejudice showing).
It appears counsel was not deficient: he objected when the State referred to Chavez stabbing a man to death in 1982, which the State had abandoned as an enhancement paragraph in the indictment. See Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983). (3 R.R. at 74; 4 R.R. at 11-12; Pet'r Mem. at 25.)
TEX.HEALTH SAFETY CODE ANN. § 481.115(d) (Vernon 2003); TEX. PENAL CODE ANN. §§ 12.32, 12.42(b) (Vernon 2003).
Appellate Counsel
Chavez also argues that appellate counsel was constitutionally ineffective because he:
1. failed to object to the transfer of the appeal and
2. did not file a proper brief under Anders. (Pet'r Mem. at 28-30.)
Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith, 528 U.S. at 285. To establish deficient performance, Chavez must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Chavez must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id.
As discussed above, the transfer of the appeal was proper and did not divest the Third District Court of Appeals of jurisdiction. Thus, appellate counsel was not deficient for failing to object to the transfer. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument). Also, appellate counsel's Anders brief was not deficient. As found by the intermediate state court of appeals, the brief presented "a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced." Chavez, No. 3-00-225-CR, slip op. at 1. (Br. in Supp. of Mot. to Withdraw.) Finally, Chavez has failed to establish actual prejudice, i.e., that the result of the appeal would have been different; thus, he is not entitled to habeas relief. Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992).
Summary
Chavez is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Chavez 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.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED.