Opinion
No. 3:04-CV-0940-H.
October 1, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has been previously referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Rayson Cooks ("Cooks" or "Petitioner") is an inmate confined at the Polunsky Unit of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") at Livingston, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Petitioner pled not guilty to escape in cause number F-0101478-IS. The jury found Willis guilty and, on his plea of true to the enhancement paragraphs, assessed punishment at 99 years imprisonment. The Fifth Court of Appeals upheld his conviction on January 31, 2003. Cooks v. State, No. 05-02-00485-CR, 2003 Tex.App. LEXIS 988 (Tex.App.-Dallas Jan. 31, 2003, pet ref'd) (not selected for publication). The Court of Criminal Appeals refused his petition for discretionary review on July 2, 2003. Cooks v. State, 2003 Tex. Crim. App. LEXIS 180 (Tex.Crim.App. July 2, 2003) (not selected for publication).
Cooks filed an application for habeas relief under Tex. Code Crim. Proc. art. 11.07 on December 22, 2003. It was denied without written order on the findings of the trial court without a hearing on April 21, 2004. Ex Parte Cooks, Appl. No. 58,224-01 at cover.
Petitioner filed the instant habeas petition on May 3, 2004. In response to this court's order to show cause, Respondent filed an answer along with copies of Cooks's state court papers on August 11, 2004. Cooks filed a response to Respondent's answer on September 10, 2004. In response to this court's letter dated September 20, 2004, Petitioner filed another response to Respondent's answer with brief in support on September 29, 2004.
Findings and Conclusions:
Review of Petitioner's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or 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." § 2254(d)(1) (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
In his first ground for relief, Cooks asserts that his first trial counsel was ineffective for failing to convey the prosecutor's plea bargain offer of eight years. Petitioner fired his first trial attorney before December 2001. Cooks v. State, 2003 Tex. App. LEXIS 988 *4. On February 15, 2002, Cooks testified that he did not want to accept any plea bargains and wanted to go to trial. (Reporter's Record, v. 2 at 5). The prosecutor stated that the eight year offer had been made before she knew the facts underlying the arrest warrant upon which Petitioner's arrest was based. (Reporters Record, v. 5 at 8-9). After learning the facts of the underlying arrest warrant, Cooks was subsequently offered a plea offer of fifteen years, which he refused. ( Id.).
The Fifth Court of Appeals, applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), found that Petitioner had failed to establish the prejudice prong of the Strickland test, even assuming arguendo that his first trial counsel failed to convey to him the prosecutor's initial plea bargain offer. The Court of Criminal Appeals upheld Cooks's conviction based on the holding of the Fifth Court of Appeals. Ex Parte Cooks at 51. Petitioner has failed to satisfy the requirements of either § 2254(d)(1) or (2).
In his second ground for relief, Cooks asserts that the evidence is factually insufficient to support his conviction. Factual insufficiency is a creation of Texas Law whereby the reviewing court scrutinizes the fact finder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). As Petitioner's claim is based entirely on Texas law, it does not support a claim for relief under federal habeas law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480 (1991).
In Clewis, the Court of Criminal Appeals made clear its understanding that the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) analysis of the legal sufficiency of the evidence was a different standard of evaluating the evidence than that applied to the factual sufficiency of the evidence under Texas state statutory and constitutional law, and the denial of relief under the Supreme Court's Jackson v. Virginia standard did not preclude a Texas appellate court from considering a claim that the evidence was factually insufficient. Clewis v. State, 922 S.W.2d at 132-33. Unlike the Jackson standard which required that the evidence be reviewed in the light most favorable to the prosecution, "a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party." Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000).
In his third ground for relief, Cooks asserts that the evidence is legally insufficient to support his conviction. The Fifth Court of Appeals summarized the evidence in the case in Cooks v. State, 2003 Tex. App. LEXIS 998 *2-3. The arresting officer testified that he chased Petitioner and subdued him with pepper spray, handcuffed him, informed him he was under arrest, took him to his office and handcuffed him to the arm of a chair, and told him that he was awaiting a warrant confirmation. Id. at *11. As with his first ground, Cooks has failed to show that the Court of Criminal Appeal's determination contravened either subpart (1) or (2) of § 2254(d).
In his fourth and final ground for relief, Cooks claims that the prosecutor committed prosecutorial misconduct with an improper argument at the punishment phase. In order to establish a federal constitutional violation based on a prosecutor's argument a habeas petitioner must prove that the statements made were not only undesirable or universally condemned, but that they were of such magnitude as to have infected the trial with unfairness so as to make the resulting conviction a denial of due process. Darden v. Wainright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986).
In determining whether a prosecutor's comment was "so improper as to affect a defendant's substantial rights," United States v. Vaccaro, 115 F.3d 1211, 1215 (5th Cir. 1997), this court considers "(1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instruction; and (3) the strength of the evidence of the defendant's guilt." United States v. Gamez-Gonzalez, 319 F.3d 695, 701 (5th Cir. 2003) (quoting Vaccaro, 115 F.3d at 1215). Cooks's trial attorney objected to the argument at the time it was made, his objection was sustained, and the jury was instructed to disregard the argument. (Reporter's Record v. 6 at 49-50). This court may "assume that a jury has the common sense to discount the hyperbole of an advocate, discounting the force of the argument." United States v. Baptiste, 264 F.3d 578, 592 (5th Cir. 2001) (quoting Vaccaro, 115 F.3d at 1216). Petitioner has failed to show that the Court of Criminal Appeals's decision was an unreasonable application of fact or law under either § 2254(d)(1) or (2).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.