Opinion
No. 3:02-CV-1547-H.
February 17, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
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 Kerry Lashawn Cheatham ("Petitioner") is an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division. Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. Factual and Procedural History : Hector Cavazos and Eric Watson were friends. (4 R.R. at 97.) On May 13, 1998, Cavazos asked Watson to ride with Petitioner for thirty (30) minutes and in exchange for $1,000. ( Id. at 95, 101.) Watson realized Petitioner and Cavazos were involved in something illegal, like a drug deal, but he agreed to do it because he needed the money. ( Id. at 101-02, 105.) Watson went with Petitioner, and they met Roderick Earl in a parking lot. ( Id. at 108-09.) Earl got something from a black bag in his car's trunk and gave it to Petitioner, who put it in the back seat of his Cadillac. ( Id. at 110-11.) Petitioner and Watson then met with Cavazos and gave him the package, which contained $16,000 in big bills. ( Id. at 113-16.) Cavazos left with the money to get drugs. ( Id. at 116.) Petitioner and Watson were to drive around and wait for Cavazos's phone call. ( Id.)
This amount of money would be half of the going rate for two kilograms of cocaine, which was the amount Cavazos was expected to buy. (7 R.R. at 35.)
A short time later, Cavazos called Petitioner and told him the money had been stolen. ( Id. at 118.) When Petitioner and Watson met Cavazos, Cavazos had a ripped shirt and a hurt lip. ( Id. at 119.) Petitioner then drove Watson and Cavazos to meet Earl at the parking lot; there, Earl got in the back seat of Petitioner's Cadillac and sat beside Cavazos. ( Id. at 122-23.) Cavazos told Earl what happened, and Earl said that if Cavazos did not find the money or the drugs, he would kill Cavazos and Watson. ( Id. at 128-31.) Cavazos told Earl he could not get any money. ( Id. at 138.) Petitioner then drove the group to pick up David Else at Earl's request. ( Id. at 139-41.) After more pressure from Earl, Cavazos contacted Carlos Chavarria; Chavarria met them and gave Petitioner $4,000, which was Cavazos's cut for brokering the drug deal. ( Id. at 144; 6 R.R. at 135-37, 144, 155-56; 7 R.R. at 35.) The five men then continued to drove around in Petitioner's Cadillac. (4 R.R. at 145.)
Earl again told Cavazos that he would kill him and Watson if he did not find the money or the drugs. Petitioner drove to an alley, and Earl and Else dragged Cavazos out of the car. Petitioner told Watson to stay in the car, and then he got out of the car. Petitioner, Earl, and Else hit and kicked Cavazos, tied him up, and put him in the trunk of the Cadillac. (4 R.R. at 146, 149-53.) Petitioner drove them around, and Earl decided they should "burn" Cavazos. ( Id. at 157.) After Petitioner and Earl stopped and bought gas in a gas can, Petitioner drove down a dirt road where Petitioner, Earl, and Else got Cavazos out of the trunk and set him on fire. ( Id. at 160-71.) Petitioner, Earl, and Else left Cavazos screaming on the ground, got back in the car, and drove off. ( Id. at 172-73.) Cavazos died as a result of his burns. (6 R.R. at 239.)
Later, Watson posed as Cavazos to call Chavarria and asked for the rest of the money. (6 R.R. at 158-60.) Chavarria told Watson that he had given them all the money. ( Id. at 159.) According to Chavarria, someone who sounded like a black male got on the phone and demanded the rest of the money. ( Id. at 159-60; 7 R.R. at 6-8.) Chavarria said that Cavazos only gave him $4,000 and that he had already given that to them. (6 R.R. at 159-60.) Chavarria's father called the police. ( Id. at 161.) The same person called Chavarria again a short time later and threatened him and his family. ( Id. at 163-65.) The police overheard the conversation, and Chavarria told the police that Cavazos might be in a Cadillac. ( Id. at 165; 7 R.R. at 10.)
Petitioner, Earl, and Else are African-American. Watson is Hispanic.
A police officer saw the Cadillac and pulled it over. (4 R.R. at 177.) When the officer approached the car, Earl told Petitioner to drive off, which Petitioner did. ( Id.) Else threw the gas can out of the car, and Petitioner then wrecked the car. ( Id. at 178-79.) Watson ran to the police and told them that the other three had killed his friend. ( Id. at 179; 5 R.R. at 258-59.) Petitioner, Earl, and Else ran from the police and were arrested a short distance away. (5 R.R. at 256; 6 R.R. at 28-30.) Gasoline was found on Else's bag, Petitioner's pants, and Earl's shoe. (8 R.R. at 99; 9 R.R. at 83-84.) Police found blood inside Petitioner's Cadillac and on Else's, Earl's, and Petitioner's clothes. (6 R.R. at 31-33; 7 R.R. at 90-96, 139; 8 R.R. at 170-83, 195, 201, 209-10.) According to DNA analysis, some of this blood was Cavazos's. (9 R.R. at 8-9, 32-33, 34, 37, 39, 44.)
Watson gave a detailed statement to police, which was later corroborated by physical evidence. (7 R.R. at 159-61; 8 R.R. at 27-28, 48.)
A jury found Petitioner guilty of capital murder, and the trial court sentenced Petitioner to life confinement. (State Habeas R. at 127.) The Eleventh District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review on February 28, 2001. Cheatham v. State, No. 11-99-187-CR (Tex.App.-Eastland Sept. 21, 2000, pet. ref'd) (not designated for publication). On January 30, 2002, Petitioner filed a state application for habeas corpus relief, challenging his conviction, which the Court of Criminal Appeals denied without written order. Ex parte Cheatham, No. 52,574-01 (Tex.Crim.App. June 19, 2002) (not designated for publication). Petitioner filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on July 19, 2002.
Else and Earl were tried jointly in a separate trial and found guilty of capital murder. (State Habeas R. at 106.) Earl v. Dretke, No. 3:02-CV-036-L, 2004 WL 2977605, at *1 (N.D. Tex. Dec. 15, 2004), accepted, 2004 WL 3029852 (N.D. Tex. Dec. 30, 2004).
D. Issues : Petitioner asserts the following issues:
1. the evidence is legally insufficient to sustain his conviction;
2. the State unconstitutionally relied on factually contradictory theories to convict him;
3. the trial court erred by submitted a contradictory jury charge;
4. the trial court abused its discretion by overruling his Batson objection;
5. his conviction was unconstitutionally obtained through uncorroborated accomplice-witness testimony;
6. trial counsel was ineffective;
7. appellate counsel was ineffective; and
8. the cumulative effect of these errors renders his conviction unconstitutional.E. Exhaustion : Dretke argues that one of Petitioner's specific allegations attacking trial counsel's performance has not been exhausted and asserts that it has been procedurally defaulted. However, Dretke concedes that Petitioner's remaining allegations have been properly exhausted.
II. EXHAUSTION AND PROCEDURAL DEFAULT
Petitioner contends in his sixth claim, in relevant part, that trial counsel was constitutionally ineffective for failing to request an expert to rebut the State's evidence. However, Petitioner did not raise the claim in either his petition for discretionary review or his state habeas corpus application. Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Because Petitioner seeks federal habeas relief on a factual allegation that was never made in the Texas courts, he has not met the exhaustion requirement. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, Petitioner cannot return to the Texas court to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20. Petitioner has failed to show either of these requirements. Accordingly, this claim is unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
III. 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).
IV. SUFFICIENCY OF THE EVIDENCE
In his first claim, Petitioner argues that the evidence is legally insufficient to support his conviction because there was no evidence he was a party or co-conspirator to the elements of the offense. (Federal Pet. at 12, 18-20, 29-30, 40-45.) To review the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence "in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). All credibility choices and conflicting inferences are to be resolved in favor of the fact-finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822 (2000). This court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (quoting Jackson, 443 U.S. at 324 n. 16). In addition, a federal habeas court must give great deference to a state court's determination of the sufficiency of the evidence and an appellate court's review of the sufficiency of the evidence. Callins v. Collins, 998 F.2d 269, 276 (5th Cir. 1993), cert. denied, 510 U.S. 1141 (1994); Parker v. Procunier, 763 F.2d 665, 666 (5th Cir.), cert. denied, 474 U.S. 855 (1985).
He also argues that there was no evidence he used a deadly weapon, i.e., the gasoline; however, there was no deadly-weapon finding. (State Habeas R. at 106, 127.)
Relying on Jackson, the state intermediate appellate court held the evidence legally sufficient:
Viewed in the light most favorable to the verdict, the evidence shows that [Petitioner] drove the Cadillac around all night while Earl threatened [Cavazos's] life. [Petitioner] drove the group to an isolated area where Earl and Else beat [Cavazos], tied his hands together, and placed him into the trunk. After Earl stated, "Let's burn this m____r f____r," [Petitioner] drove the car to a gas station, accompanied Earl inside the store, returned with a gas can, and filled it up. [Petitioner] then drove the car to an isolated area after Earl told [Petitioner] to find a place to burn [Cavazos]. [Petitioner] helped Earl and Else take [Cavazos] from the trunk of the car to a grassy area. The evidence shows that all three men simultaneously kicked and hit [Cavazos]. [Petitioner] stood and watched either Earl or Else set [Cavazos] on fire. [Petitioner] then drove from the scene and led the police on a high-speed chase.
While it is not sufficient to render an accused a party to an offense, the mere presence at the scene of an offense is a circumstance tending to prove that a person is a party and, taken with other facts, may be sufficient to show that the accused was a participant. . . . [Petitioner] was not merely present at the scene of the offense. From the circumstances both before and during the offense, the jury could reasonably infer a prior agreement or common purpose to commit murder. The evidence is legally sufficient to prove that [Petitioner] was guilty as a party under TEX. PENAL CODE ANN. § 7.02 (a)(2) (Vernon 1994).Cheatham, No. 11-99-187-CR, slip op. at 5. The Court of Criminal Appeals denied Petitioner's petition for discretionary review on this issue. This determination was not in conflict with clearly established federal law nor was it based on an unreasonable determination of the facts in light of the evidence. Petitioner is not entitled to habeas relief. 28 U.S.C. § 2254(d).
V. PROSECUTORIAL MISCONDUCT — INCONSISTENT THEORIES
In his second claim, Petitioner asserts that the State committed prosecutorial misconduct by using factually contradictory theories to convict him of the same offense as Else and Earl. He argues that the State claimed Petitioner was the primary actor in Else and Earl's trial and then claimed at Petitioner's trial that Petitioner was merely a party. (Federal Pet. at 12-14, 30-32.) On state habeas review, the prosecutor submitted an affidavit in which he asserted that he did not rely on inconsistent theories to convict Earl, Else, and Petitioner:
In both the Earl/Else trial and the Cheatham trial, I argued the exact same thing in my jury argument, to-wit: all three of them hit and kicked [Cavazos] and then either Earl or Else doused him with gasoline and set him on fire while Cheatham stood there. (See Page 191 from Volume 8 of 11 of the Statement of Facts from the Earl/Else trial and Page 154 from Volume 10 of 12 of the Statement of facts from the Cheatham trial. These pages are attached to this affidavit.) This argument was based on my evidence as developed at trial. I never attempted at either trial to prove or argue that Cheatham was a principal. With this in mind, the Court's charges in the Earl/Else cases authorized a conviction either as a principal or as a party. Additionally, the Court's charge in the Cheatham case did not authorize conviction as a principal, rather as a party or by entering into a conspiracy to commit kidnaping with the anticipated offense of causing [Cavazos's] death. (See the applicable portions of the Court's charge in the Earl case — the Else charge is identical here — and the applicable portions of the Court's charge in the Cheatham case which are attached to this affidavit.) (State Habeas R. at 107.)
The state habeas courts found this affidavit to be true and rejected Petitioner's claim based on the affidavit. ( Id. at 120.) Indeed, the record supports the prosecutor's assertion that Earl and Else were prosecuted as principals, while Petitioner was prosecuted as a party. (Clerk R. at 88, 91-92.) The findings of fact are presumed correct, and Petitioner has not overcome this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
VI. DEADLY-WEAPON FINDINGS AND THE JURY CHARGE
Petitioner argues in Claim 3 that when the trial court made no deadly-weapon finding in Else's and Earl's convictions, Petitioner ipso facto became the principal, which renders the trial court's party charge in Petitioner's trial unconstitutional. (Federal Pet. at 16, 36-37.)First, the state habeas courts held that this claim was procedurally defaulted because it should have been, but was not, raised on appeal. (State Habeas R. at 120) This procedural-default finding bars a federal court on habeas review from reaching the merits of a defaulted claim. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman, 501 U.S. at 750; Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Petitioner has failed to excuse his procedural default; thus, this claim is procedurally barred.
Second, the prosecutor stated that he did not request deadly-weapon findings because such a finding is "meaningless" in a capital-murder conviction. (State Habeas R. at 106.) See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(1)(B) (Vernon Supp. 2004-05) (dictating that community supervision is not available if convicted of capital murder); TEX. GOV'T CODE ANN. § 508.149(a)(3) (Vernon 2003) (mandating ineligibility for mandatory supervision if convicted of capital murder). Because the trial court, and implicitly the Court of Criminal Appeals, held that this statement was credible, this finding is presumed correct; thus, the conclusion that the charge was not unconstitutional is entitled to statutory deference. 28 U.S.C. § 2254(d). Further, the lack of a deadly-weapon finding in Earl's and Else's convictions did not impact Petitioner's status as a party. Accordingly, Petitioner is not entitled to habeas relief on this claim.
VII. JURY SELECTION
Petitioner argues in his fourth claim that the trial court erred in overruling his Batson objection to the State's peremptory strikes to veniremembers 6, 9, and 14 because the State failed to proffer race-neutral reasons for striking these African-American veniremembers. (Federal Pet. at 17, 37-38.) Again, the state habeas courts held that this claim was procedurally defaulted, which bars this Court from addressing the merits of this claim. (State Habeas R. at 120.)
Notwithstanding procedural default, Petitioner's allegation is without merit. 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).
After both sides had exercised their strikes, Petitioner argued that the State had used its peremptory challenges in a "racially motivated manner" to strike three African-Americans from the jury, veniremembers 6, 9, and 14. (3 R.R. at 191.) The State responded that it struck veniremember 6 because her son had been convicted of robbery. ( Id. at 192.) Veniremember 9 was struck because the State felt he could not be fair or impartial:
[H]is questionnaire states clearly that because of this type of case he just could not sit in judgment. I think he rehabilitated for purposes of challenge for cause by the Court. However, we feel that is something that because he felt strongly about it in both questions in his questionnaire and also in the final question in the questionnaire when he said he could not sit as a fair and impartial juror. . . . His answer to Question 2 on Page 1 was a personal belief of not wanting to participate in a decision to send someone to prison for life. . . . [T]herefore, we think that he would not be a good juror in this type of case. ( Id. at 192-93.)
The State struck veniremember 14 because her brother had been recently convicted of a drug-related crime and because she had experience as a nurse with blood evidence being tainted, which was a possible defense for Petitioner. ( Id. at 193.) The trial court found that the State did not exercise it peremptory strikes in a racially discriminatory manner:
The Court has heard . . . the statements for counsel for the State and statements of counsel for [Petitioner] and I've heard the arguments.
Concerning Juror Number 6, the Court finds that it was a neutral nonracial basis for the State's strikes. The Court makes the same ruling as to Number 9. Number 9 is quite equivocal in being able to sit in judgment and give a life sentence. And the Court did in effect rehabilitate as far as the witness was concerned and I find that the State has a nonracial neutral reason for that strike.
And the Court also recalls the testimony concerning juror 14 and finds that there was a nonracial neutral reason for that strike and that [Petitioner] is not overcome with the burden of proving that there was, in fact, a racial strikes made in any one of these three cases.
The Court notes that there are two black jurors that were not struck by the State, and one of which was struck by the defendant. And the other one, Number 40, was not struck; and I'm not sure if we reached that juror or not. ( Id. at 197-98.) Petitioner has provided no proof that was not before the trial court to support his contention that the trial court should have disbelieved the State's race-neutral explanations for its use of peremptory strikes on the three veniremembers. Indeed, the reasons offered by the State were race-neutral and supported by the record. See Williams v. State, 804 S.W.2d 95, 106 (Tex.Crim.App. 1991) (holding State's reason for using peremptory strike against a juror who would have difficulty assessing the maximum penalty race-neutral); Tompkins v. State, 774 S.W.2d 195, 205 (Tex.Crim.App. 1987) (concluding peremptory challenge was race-neutral when prosecutor stated juror's employment was one with which she had not had "good luck"), aff'd per curiam by an equally divided Court, 490 U.S. 754 (1989); Sims v. State, 768 S.W.2d 863, 865 (Tex.App.-Texarkana 1989) (holding peremptory challenge appropriate against prospective juror with a relative who had problems with the law), pet. dism'd per curiam, 792 S.W.2d 81 (Tex.Crim.App. 1990). Accordingly, Petitioner is not entitled to habeas relief on this claim.
VIII. ACCOMPLICE-WITNESS TESTIMONY
In his fifth claim, Petitioner asserts that his conviction was unconstitutionally obtained through the use of uncorroborated accomplice-witness testimony and that he was entitled to an instruction on Watson's status as an accomplice. (Federal Pet. at 17-18, 21-22, 38-39, 49-50.) TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 1979); DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990). These arguments raise violations of state law and fail to pose a constitutional issue; thus, Petitioner is not entitled to habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983), cert. denied, 469 U.S. 873 (1984).Nevertheless, Petitioner's claim is meritless. The state court of appeals held that, even assuming Petitioner was entitled to an accomplice-witness charge, he was not harmed based on independent corroborating evidence connecting him to the offense:
The State introduced evidence that human blood was found on [Petitioner's] clothing as well as on Earl's and Else's clothing. DNA analysis indicated that some of the blood was from [Cavazos]. The State further introduced a receipt for gasoline and a gas can from the 7-Eleven. The clerk working in the 7-Eleven on May 14, 1998, testified that a Black man purchased a gas can and filled it up around midnight. Another Black man entered the store as the clerk finished the transaction. The clerk testified that the car involved was "the same kind of car, the same shape, same color" as the picture of [Petitioner's] car. Gasoline was found in the fabric of [Petitioner's] pants. Given the amount of non-accomplice evidence connecting [Petitioner] to the crime, and the tenuousness of the evidence that Watson was an accomplice, we find that the trial court's error, if any in failing to give an accomplice instruction was harmless.Cheatham, No. 11-99-187-CR, slip. op. at 9. There is no showing that this adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence. Thus, Petitioner is not entitled to habeas corpus relief. 28 U.S.C. § 2254(d).
IX. INEFFECTIVE ASSISTANCE OF COUNSEL
In his sixth and seventh claims, Petitioner alleges that he received 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.
Petitioner's remaining 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).
A. Trial Counsel
Petitioner asserts that trial counsel was constitutionally ineffective when she:
1. failed to investigate and present facts regarding the State's inconsistent theories;
2. failed to renew her objection to the enhancement paragraph;
3. did not request a jury charge on the lesser included offense of kidnaping; and
4. did not request a jury charge on independent impulse. (Federal Pet. at 14-15, 20-21, 32-34, 45-48.)
First, Petitioner cannot meet the prejudice requirement of the Strickland test. As discussed above regarding the sufficiency of the evidence, the evidence overwhelmingly establishes Petitioner's guilt; thus, he cannot show that the result of the trial would have been different had counsel acted differently. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002), cert. denied, 538 U.S. 1001 (2003); Creel v. Johnson, 162 F.3d 385, 396 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999).
Second, Petitioner has failed to show deficient performance and has thus failed to overcome the presumption that the state habeas courts' determination that counsel was not ineffective was correct. 28 U.S.C. § 2254(e)(1). (State Habeas R. at 120.) Other than Petitioner's self-serving allegations, there is no record support for his claims that counsel failed to investigate and present facts regarding the inconsistent theories. Indeed, counsel stated in an affidavit, which the state habeas courts credited, that she thoroughly investigated the case by reading the entire transcript from Earl and Else's trial, interviewing Petitioner, interviewing Petitioner's mother, and reviewing the State's file. (State Habeas R. at 103-04.) Further, the State did not pursue inconsistent theories in the trials of Petitioner, Else, and Earl. ( Id. at 107.) This allegation is conclusory and cannot support habeas relief. 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); Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir), cert. denied, 506 U.S. 957 (1992).
Regarding counsel's actions regarding the enhancement paragraph, counsel stated in her affidavit that any further objection would have been unnecessary:
The indictment was read outside the presence of the jury including the enhancement paragraphs, but the indictment was read in the presence of the jury excluding enhancement paragraphs. The jury did not have evidence before it of the prior felony conviction of [Petitioner], but most likely would have known about them, should [Petitioner] have exercised his right to testify in his own behalf. With no evidence of prior felony convictions in evidence, there was no need to request a jury instruction for the jury to not use [Petitioner's] prior felony convictions in determining guilt or innocence. Since [Petitioner] was found guilty of capital murder and automatically sentenced to life confinement, there was no need to renew my objection to the enhancement paragraphs. (State Habeas R. at 104.)
Counsel cannot be held deficient for failing to make a meritless objection. 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).
Petitioner argues that counsel was ineffective for failing to request an instruction on kidnaping. However, counsel stated in her affidavit that she failed to request one as a matter of trial strategy:
I considered asking for the lesser-included offense of kidnaping; however, the testimony given by convicted co-defendant Roderick Earl, called as a defense witness against my advice and at [Petitioner's] insistence, negated all involvement of any of the defendants in the kidnaping or murder of Hector Cavazos. In my opinion, after we called him as a defense witness, we had to live by what he said or lose credibility with the jury with our strongest argument, which was that the physical evidence (and thus the DNA and gasoline analysis of the physical evidence) was tainted by the sloppiness of the police department. At [Petitioner's] insistence, I bench-warranted Earl to Dallas County from the penitentiary. I interviewed Mr. Earl, and I told [Petitioner] that I did not want to call Mr. Earl as a witness, but I would do what he wanted to do. He said that he wanted Mr. Earl to testify. I also questioned [Petitioner] in this regard on the record. He stated that he knew that I was calling Mr. Earl as a witness at his insistence and against my better judgment. Later [Petitioner] indicated to me that he saw the error of his choice when, during Mr. Earl's testimony, [Petitioner] leaned over and whispered to me, `Get him off the stand, NOW.' (State Habeas R. at 104-05.)
This strategic decision cannot be second-guessed. Anderson v. Collins, 18 F.3d 1208, 1219-20 (5th Cir. 1994).
Counsel was also not deficient for failing to request a charge on independent impulse. As held by the state court of appeals, Petitioner was not entitled to such an instruction under state law. Cheatham, No. 11-99-187-CR, slip op. at 7. Accordingly, trial counsel cannot be faulted for failing to request it. Lauti, 102 F.3d at 170.
B. Appellate Counsel
Petitioner also argues that appellate counsel was constitutionally ineffective because he failed to argue on appeal the State's inconsistent theories of the case. (Federal Pet. at 35-36.) Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish deficient performance, Petitioner must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Petitioner must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id. As discussed above, this claim is without merit. Thus, Petitioner cannot satisfy the Strickland requirements. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); Cantu v. Collins, 967 F.2d 1006, 1017 (5th Cir. 1992), cert. denied, 509 U.S. 926 (1993); Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992). Further, the trial court concluded that counsel had rendered effective assistance and credited his statements that such an issue would have been inappropriately raised on appeal. (State Habeas R. at 98, 120.) Petitioner has not overcome the presumption of correctness of these determinations. 28 U.S.C. § 2254(e)(1).
X. CUMULATIVE ERROR
Finally, Petitioner contends that the cumulative effect of all his raised grounds renders his conviction unconstitutional. (Federal Pet. at 18, 39-40.) Federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law, (2) the errors were not procedurally defaulted, and (3) the errors so infected the entire trial that the resulting conviction violates due process. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en banc). However, a habeas petition may not just complain of unfavorable rulings or events in an effort to cumulate errors. Id. at 1458. As noted above, Petitioner's claims are either meritless, procedurally defaulted, or do not rise to the federal constitutional dimension necessary to warrant cumulative-error analysis. As such, Petitioner has presented nothing to cumulate. Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993).
XI. SUMMARY
Petitioner is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Petitioner 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.
XII. EVIDENTIARY HEARING
Upon review of the pleadings filed and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary. RULES GOVERNING SECTION 2254 CASES 8(a).
XIII. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the request for habeas corpus relief brought under 28 U.S.C. § 2254.