Opinion
No. 3:01-CV-2637-H.
July 14, 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 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 habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural and Factual History : On May 4, 1999, the State indicted petitioner for possession of a controlled substance. See TR at 2. The case against petitioner proceeded to trial on August 10, 1999. Reporter's Record, Vol. II at 1 [hereinafter cited as RR-volume # at page].
"TR" refers to the state trial record in Cause No. F99-47569-TN.
The State called four witnesses in its case in chief, including Dallas Police Officer Michael Mata and forensic chemist Anne Weaver. RR-III at 6, 27-28, 36, 52, 59. Officer Mata testified that he personally saw petitioner "throw a clear plastic baggie from his hand" RR-III at 40. He specifically identified petitioner in court as the person who tossed the baggie to the ground. Id. at 41. He also identified State's Exhibit 2 as the baggie containing several rocks of crack cocaine that petitioner threw and that he retrieved from the scene. Id. at 44-45. Finally, he testified that he found "a small razor blade with cocaine residue on top of the dash" of petitioner's vehicle. Id. at 46. The forensic chemist testified that the baggie contained 1.04 grams of crack cocaine. Id. at 52-56.
The defense called four witnesses before resting, including petitioner's juvenile stepson, Carl Sonnier; petitioner's older brother, Phillip Dunkins; and petitioner's friend, Jamille Davis. Id. at 60, 75, 97, 107, 188. Petitioner's brother testified that the razor blade belonged to him. Id. at 98-99. Petitioner's stepson testified that he had tossed the drugs to the ground. Id. at 79, 86, 88. Petitioner's friend testified that he saw petitioner's stepson drop the drugs. Id. at 109-10, 112-13.
During their deliberations, the jury sent a note to the trial court asking to see the testimony of Officer Mata and petitioner's stepson. See TR at 32. The trial court responded that the jury was "not entitled to have a general re-reading of any witness' testimony." Id. at 33. The court further instructed the jury regarding the procedure for obtaining disputed testimony. See id. at 33-34.
Upon completion of the trial, the jury found petitioner guilty of possession of a controlled substance. RR-IV at 5. Petitioner thereafter pled true to two enhancement paragraphs. Id. at 8. On September 1, 1999, after hearing testimony from defense witnesses, the court sentenced petitioner to thirty years imprisonment. RR-V at 36.
On October 1, 1999, petitioner moved for a new trial based upon alleged improper communication between the jury and a bailiff when the bailiff returned the trial court's response to the jury's note. See TR at 46-52. A juror submitted an affidavit in support of that motion averring that the bailiff had told the jury "that we could not have just part of a testimony, that we must ask for the entire testimony for the court reporter to prepare, which could take hours." Id. at 50. The juror further indicated that those "three different statements and tone of the bailiff indicated that we should refrain from asking for this information." Id.
On November 15, 2000, the court of appeals affirmed petitioner's conviction. Dunkins v. State, No. 05-99-01564-CR, 2000 WL 1702708, at *1-2 (Tex.App.-Dallas Nov. 15, 2000, pet. ref'd) (not designated for publication). In July 2001, petitioner filed a state application for writ of habeas corpus. See S.H. Tr. at 2. On November 14, 2001, the Texas Court of Criminal Appeals denied the application without written order on findings of trial court without a hearing. See Ex parte Dunkins, No. 50,306-01, slip op. (Tex.Crim.App. Nov. 14, 2001).
"S.H. Tr." denotes the state habeas records attached to Ex parte Dunkins, No. 50,306-01, slip op. (Tex.Crim.App. Nov. 14, 2001).
Petitioner executed the instant federal writ of habeas corpus on December 5, 2001. (Pet. at 9.) Respondent filed an answer on February 25, 2002. ( See Answer at 1.)
D. Substantive Issues : Petitioner asserts seven claims: (1) ineffective assistance of counsel; (2) insufficiency of the evidence; (3) abuse of discretion by the trial court; (4) jury misconduct; (5) conviction obtained through use of evidence gained through unconstitutional search and seizure; (6) invalid or defective indictment; and (7) violation of Miranda rights. (Pet. at 7-8 and attached pages, hereinafter referred to as pages 8A and 8B.)
Miranda v. Arizona, 384 U.S. 436 (1966).
E. Exhaustion : Respondent concedes that petitioner has exhausted his state remedies for the claims raised in the instant petition. ( See Answer at 5.) Nevertheless, respondent asserts that Claims 2 and 4 above are procedurally barred from federal habeas review. ( Id. at 7-8.) Alternatively, he asserts that those claims fail on their merits. ( Id. at 8.)
II. PROCEDURAL BAR
Respondent asserts that petitioner's claims of insufficiency of the evidence (Claim 2) and jury misconduct (Claim 4) are procedurally barred. ( See Answer at 7-8.) Federal courts may not review a state court decision that rests on an adequate and independent state procedural default unless the habeas petitioner shows "cause" for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. See id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
A. Jury Misconduct
In this instance, respondent urges the Court to find petitioner's claim of jury misconduct — procedurally barred based on the following statement by the habeas court:
Applicant's third allegation [of jury misconduct] was presented to the Court of Appeals in the direct appeal of Applicant's conviction to said court. The Court of Appeals in its written opinion affirming [his] conviction expressly found said allegation to be without merit. . . . Applicant has not, in the instant Application for Writ of Habeas Corpus, presented this Court with any new facts or citations of authority which would require a reconsideration of this issue. This Court concurs with and is bound by the prior opinion of the Court of Appeals with regard to the disposition of Applicant's third allegation [of jury misconduct].
(Answer at 8 (quoting S.H. Tr. at 53)).
The court of appeals considered this claim on the merits. See Dunkins v. State, No. 05-99-01564-CR, 2000 WL 1702708, at *1 (Tex.App.-Dallas Nov. 15, 2000, pet. ref'd) (not designated for publication). The state habeas court specifically concurred with that opinion. S.H. Tr. at 53. In so doing, the state habeas court did not rely on any procedural default to dispose of the claim. While the Texas Court of Criminal Appeals denied the state petition without written order, it did so based upon the findings of the trial court. Under these circumstances, the claim is not procedurally barred from federal habeas review. See Bennett v. Whitley, 41 F.3d 1581, 1582-83 (5th Cir. 1994) (if the last state court to reach the issue addresses the claim on the merits, then federal courts are also free to review merits of claim).
B. Sufficiency of the Evidence
Respondent urges the Court to find petitioner's sufficiency-of-the-evidence claim procedurally barred because such a claim is not cognizable on state habeas review. ( See Answer at 7-8).
Under Texas law, a defendant cannot challenge the sufficiency of the evidence in a state application for writ of habeas corpus. Ex parte McClain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). The failure to raise such a challenge on direct appeal constitutes "a procedural default under state law." Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994). The procedural default doctrine provides an adequate reason to deny federal claims based upon sufficiency of the evidence, when the state habeas court has relied upon the procedural default and the Texas Court of Criminal Appeals denied the state petition without stating its reasons. See West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996). However, "the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: `[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.'" Harris v. Reed, 489 U.S. 255, 261-62 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)).
In this instance the Texas Court of Criminal Appeals denied the state petition with specific reference to the findings of the state trial court. See Ex parte Dunkins, No. 50,306-01, slip op. at 1 (Tex.Crim.App. Nov. 14, 2001). As noted by respondent, with respect to the insufficiency-of-the-evidence claim, the trial court stated: "The evidence adduced at trial was sufficient to support Applicant's conviction. Applicant cannot, by way of Application for Writ of Habeas Corpus, challenge the sufficiency of the evidence upon which the conviction . . . is based." S.H. Tr. at 52-53. Thus, it is unclear whether the state court actually relied on the procedural bar as an independent basis for its disposition of the case.
Courts resolve ambiguity in accordance with the "plain statement" rule espoused in Michigan v. Long, 463 U.S. 1032 (1983). See Harris, 489 U.S. at 262. "Under Long, if it fairly appears that the state court rested its decision primarily on federal law, this Court may reach the federal question on review unless the state court's opinion contains a plain statement that [its] decision rests upon adequate and independent state grounds." Id. at 261 (quoting Long, 463 U.S. at 1042, internal quotation marks omitted). In other words, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Id. at 263 (citations and internal quotation marks omitted). This "plain statement" rule "achieves the important objective of permitting the federal court rapidly to identify whether federal issues are properly presented before it." Id. at 265. State courts, moreover,
need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.Id. at 264 n. 10. When the state court appears to have considered the merits of a claim and does not explicitly rely on a procedural bar to resolve such claim, there is no procedural default. See Dowthitt v. Johnson, 230 F.3d 733, 757 n. 36 (5th Cir. 2000).
Applying the "plain statement" rule in this case, the Court finds that the last Texas state court to have rendered a "reasoned opinion" did not "clearly and expressly" rely on procedural default as a ground for rejecting any aspect of petitioner's claim of insufficiency of the evidence. The court first stated that the evidence "was sufficient to support" petitioner's conviction. S.H. Tr. at 52. This statement clearly goes to the merits of the insufficiency claim. The court further stated that petitioner "cannot, by way of Application for Writ of Habeas Corpus, challenge the sufficiency of the evidence upon which the conviction . . . is based." Id. at 52-53. While this statement implies a procedural bar, the "statement falls short of an explicit reliance on a state-law ground." See Harris, 489 U.S. at 266.
While it perhaps could be argued that [the second] statement would have sufficed had the state court never reached the federal claim, the state court clearly . . . reject[ed] the federal claim on the merits. As a result, the reference to state law in the state court's opinion is insufficient to demonstrate clearly whether the court intended to invoke waiver as an alternative ground. Id. at 266 n. 13. "The state must `clearly and expressly' rely on the adequate and independent state ground" before the federal courts are prohibited from considering the claim due to procedural bar. Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). In this instance, the state court did not clearly and expressly rely upon an adequate and independent state ground to resolve the insufficiency claim. Under the circumstances of this case, the claim is not procedurally barred from federal habeas review. See Bennett v. Whitley, 41 F.3d 1581, 1582-83 (5th Cir. 1994).
Because the procedural default doctrine does not bar federal habeas relief on petitioner's insufficiency of the evidence and jury misconduct claims, the Court proceeds to the merits.
III. APPLICABLE LAW
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. "In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The court of appeals also considered the merits of petitioner's claim on direct appeal. See Dunkins v. State, No. 05-99-01564-CR, 2000 WL 1702708, at *1 (Tex.App.-Dallas Nov. 15, 2000, pet. ref'd). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; accord Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; accord Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
IV. DEFECTIVE INDICTMENT
Petitioner claims that his indictment is invalid or defective because it does not allege an affirmative link between him and the contraband ( See Pet. at 8B.)
"The sufficiency of a state indictment is not a matter for federal habeas corpus review unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Alexander v. McCotter, 775 F.2d 595, 598 (1985). Federal courts, nevertheless, will not consider claims that a state indictment is insufficient to confer jurisdiction upon the trial court when the issue "was squarely presented to the highest court of the state" and it can reasonably be inferred that that court passed on the merits of the sufficiency issue. Id. at 598-99. In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).
Petitioner raised this issue in his state writ. See S.H. Tr. at 12. The Texas Court of Criminal Appeals denied that writ. See Ex parte Dunkins, No. 50,306-01, slip op. at 1 (Tex.Crim.App. Nov. 14, 2001). Thus, the court implicitly found the indictment sufficient, and this Court will not review that implicit finding. See Alexander, 775 F.2d 598-99.
V. ILLEGAL SEARCH AND SEIZURE
Petitioner also claims that the State convicted him by use of evidence gained from an unconstitutional search and seizure. ( See Pet. at 8A-8B.) Such claim arises under the Fourth Amendment to the United States Constitution. See Avery v. Procunier, 750 F.2d 444, 448 (5th Cir. 1985). This Court cannot grant federal habeas relief on Fourth Amendment claims when "the State has provided an opportunity for full and fair litigation" of such claims. See Stone v. Powell, 428 U.S. 465, 494 (1976). In O'Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 1977), the Fifth Circuit expounded upon the rule laid out in Stone:
We conclude that where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court. Where, however, the facts are undisputed, and there is nothing to be served by ordering a new evidentiary hearing, the full and fair consideration requirement is satisfied where the state appellate court, presented with an undisputed factual record, gives full consideration to defendant's Fourth Amendment claims. Such a distinction makes practical sense because it ensures that a criminal defendant is given a full hearing on his Fourth Amendment claims and the facts underlying those claims at least once at the state level, but it does not require the State to hold evidentiary hearings which would be useless and inefficient. . . .
. . .
Second, Stone only requires that the State provide an opportunity for full and fair adjudication of Fourth Amendment claims. Thus, if Petitioner deliberately bypassed state procedures for making his Fourth Amendment objections known or if he knowingly waived his Fourth Amendment objections, then a federal District Court would be precluded from granting habeas corpus relief on Fourth Amendment grounds despite the fact that no state hearing was in fact held on Petitioner's claims.546 F.2d at 1213-14 (footnotes omitted).
In this case, petitioner moved to suppress the evidence obtained from the alleged illegal search and seizure at trial pursuant to TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1(6) (Vernon 1989). See TR at 22-23. The trial court denied the motion. See RR-II at 112. Although petitioner did not raise the issue on appeal, see, generally, Dunkins v. State, No. 05-99-01564-CR, 2000 WL 1702708, at *1-2 (Tex.App.-Dallas Nov. 15, 2000, pet. ref'd), he did pursue it in his state petition for writ of habeas corpus, see S.H. Tr. at 11. Because petitioner has had an opportunity to fully and fairly litigate his Fourth Amendment claim at the state level, and in fact did litigate such claim at the state level, Stone bars this Court's consideration of the claim on habeas review.
VI. SUFFICIENCY OF THE EVIDENCE
Petitioner also claims that insufficient evidence supports his conviction. (Pet. at 7 and 8A.) Specifically, he asserts that the evidence does not support a finding that he possessed any drugs. ( Id.)
"A criminal defendant has a federal due process right to be convicted only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense." Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal courts have extremely limited habeas review of claims based on the sufficiency of the evidence, and the standard for reviewing such claims is supplied by Jackson v. Virginia, 443 U.S. 307 (1979). When reviewing such claims against the underlying conviction, the relevant question "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. When "faced with a record of historical facts that supports conflicting inferences [courts] must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326. Under Jackson, "the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). "Determining the weight and credibility of the evidence is within the sole province of the jury." United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992). Courts view "any required credibility determinations in the light most favorable to the guilty verdict." United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000). They do not "second-guess the weight or credibility given the evidence." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999). The Jacdson standard applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998).
Federal courts apply the "standard looking to the state's substantive law, giving great weight to the state court's determination." Miller v. Johnson, 200 F.3d 274, 286 (5th Cir. 2000). State case law and statutes bind the courts in their determination of the elements needed to be proven. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). In reviewing a challenge to the sufficiency of the evidence supporting the underlying conviction, " Jackson requires . . . that the review occur `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n. 16). The federal courts must "independently analyze the governing statute, the indictment, and the jury charge to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry." Id. at 260. When considering a claim of insufficient evidence to support the underlying conviction on federal habeas review, this Court should only determine "whether the evidence was constitutionally sufficient to convict [petitioner] of the crime charged." Id. at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)).
In this instance, the State charged petitioner with "unlawfully, knowingly and intentionally possess[ing] a controlled substance, to-wit: COCAINE, in an amount by aggregate weight . . . of 1 gram or more but less than 4 grams." TR at 2 (indictment). To commit the offense of possession of a controlled substance, a person must knowingly or intentionally possesses a controlled substance. TEX. HEALTH SAFETY CODE ANN. § 481.115(a) (Vernon 1994). "To prove unlawful possession of a controlled substance, "the State must prove that [the defendant] exercised actual care, control and management over the contraband; and second, that [he] had knowledge that the substance in his possession was contraband" King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In other words, the State must present evidence that affirmatively links the defendant to the controlled substance. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Such evidence, whether direct or circumstantial, "suffices for proof that he possessed it knowingly." Id. The evidence "must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id.
"No set formula of facts exists which would dictate a finding of an `affirmative link' sufficient to support an inference of knowing possession of contraband Each case depends on the evidence adduced therein." Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd) (citation omitted). The courts of Texas "have divined numerous factors useful in determining whether the accused's link to the contraband was more than mere fortuity." Park v. State, 8 S.W.3d 351, 353 (Tex.App.-Amarillo 1999, no pet.). "The number of factors present is not as important as the `logical force' or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband" Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Sufficient evidence supports a possession conviction, "if the evidence establishes, beyond reasonable doubt, [defendant's] knowing link to the drugs." Park, 8 S.W.3d at 353.
Further, a showing of actual or constructive possession suffices to show the requisite control. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Porter, 873 S.W.2d at 734. "Constructive possession" means "the knowing exercise of, or knowing power to exercise, dominion and control over contraband" Porter, 873 S.W.2d at 734; accord McGoldrick, 682 S.W.2d at 578 (recognizing "that `possession' means more than being where the action is; it involves the exercise of dominion and control over the thing actually possessed"). The State may establish such possession "by showing ownership, dominion or control over contraband" Porter, 873 S.W.2d at 734. As long as the defendant "has actual ownership of contraband or a power to exercise control over contraband, he will be in constructive possession of contraband" Id. "The issue is whether the evidence will support a reasonable inference that the defendant knowingly possessed the contraband" Victor v. State, 995 S.W.2d 216, 220 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).
The evidence in this case which affirmatively linked petitioner to the drugs was Officer Mata's testimony. He identified petitioner in court as the individual he saw "throwing a clear plastic baggie from his hand" RR-III at 40, 41, 121. Officer Mata also identified State's Exhibit 2 as the baggie with several rocks of crack cocaine in it which petitioner threw and which Officer Mata retrieved from the scene. Id. at 44-45. He further testified that he found "a small razor blade with cocaine residue on top of the dash" of petitioner's vehicle. Id. at 46. Officer Mata also testified that the "only person" he saw "in possession of any narcotics was the defendant." Id. at 123. Finally, Officer Mata testified that he had no doubt regarding the identity of the individual who possessed the drugs:
The forensic chemist identified the contents of the baggie as 1.04 grams of crack cocaine. Id. at 52-56.
Because I observed the defendant have care, custody and maintain control of the drugs that came out of his right pocket and fell to the ground. I personally observed him having control of those drugs, holding them in his hand So I know that he knew it was drugs. He threw it because he knew it was drugs.Id. at 125. The testimony of Officer Mata, in conjunction with that of the chemist, is sufficient to support the conviction for possession of cocaine. Although there was contradictory testimony in the record regarding who possessed the cocaine, the jury made its credibility determination and found Officer Mata more credible than the petitioner's witnesses.
Petitioner raised his insufficiency of the evidence claim in his state writ. See S.H. Tr. at 9, 11. The state habeas court found the evidence sufficient to support petitioner's conviction. S.H. Tr. at 52. The Texas Court of Criminal Appeals accepted that finding when it denied petitioner's state writ on the findings of the trial court See Ex parte Dunkins, No. 50,306-01, slip op. at 1 (Tex.Crim.App. Nov. 14, 2001). The decision of the state court appears consistent with the governing Supreme Court precedent set forth in Jackson. The decision, furthermore, appears to be a reasonable application of such law. See 28 U.S.C. § 2254(d)(1). This Court must, therefore, accept the findings of the state court, unless that court unreasonably applied the applicable legal principle to the facts of the case. Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Applying the Jackson standard to the instant matter and after conducting a thorough review of the record, the Court finds that a rational jury could have found that the evidence presented in petitioner's trial established the essential elements of possession of a controlled substance beyond a reasonable doubt. Thus, the state court's finding that the evidence was sufficient to support the conviction for possession of a controlled substance appears to be based upon a reasonable determination of the facts. See § 2254(d)(2). Petitioner has failed to carry the heavy burden imposed by 28 U.S.C. § 2254(d), as interpreted by Williams. Accordingly, his claim of insufficiency of the evidence entitles him to no habeas relief.
VII. MIRANDA VIOLATION
Petitioner further claims that the State violated his rights when police officers questioned him and his stepson without reading them their Miranda rights. (Pet. at 8B.)A failure to give Miranda warnings can require consideration of both the Fourth Amendment prohibition against illegal searches and seizures and the Fifth Amendment right against compulsory self-incrimination. See Oregon v. Elstad, 470 U.S. 298, 305-06 (1985). Nevertheless, "[t]he prophylactic Miranda warnings . . . are `not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'" Id. at 305 (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)). The Fourth Amendment exclusionary rule can be used to exclude statements and confessions obtained in the absence of Miranda warnings. Id. at 305-06.
The instant federal petition provides no specific facts regarding the alleged improper police questioning. ( See Pet. at 8A and 8B.) Petitioner's memorandum in support of his state writ reveals, however, that this claim is based upon allegations that the State used statements from his stepson against petitioner at trial. See S.H. Tr. at 32, 34. Nothing of record reveals that petitioner's stepson was under arrest when he made the statements used against petitioner. Thus, Miranda warnings to the stepson were not warranted. Because petitioner bases his claim on the State's use of statements from his stepson, he has stated no violation of his right against compulsory self-incrimination that is protected by the Fifth Amendment. To the extent this claim is based upon a violation of the Fifth Amendment, it thus fails.
Furthermore, to the extent this claim is based upon the failure to exclude evidence under the Fourth Amendment, the claim fails for the same reasons previously set forth in resolving petitioner's claim of illegal search and seizure. Petitioner could have moved to suppress the statements given by his stepson, see TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1(6) (Vernon 1989), but he did not do so. He did not challenge the statements on appeal, either. See, generally, Dunkins v. State, No. 05-99-01564-CR, 2000 WL 1702708, at *1-2 (Tex.App.-Dallas Nov. 15, 2000, pet. refd). Petitioner did not raise his Miranda claim until he filed his state petition for writ of habeas corpus. The trial court found no violation of petitioner's Miranda rights. S.H. Tr. at 53. By denying petitioner's state writ on the findings of the trial court, the Texas Court of Criminal Appeals accepted that finding. See Ex parte Dunkins, No. 50,306-01, slip op. at 1 (Tex.Crim.App. Nov. 14, 2001). Accordingly, to the extent this claim is premised on the Fourth Amendment, it is barred from consideration by this Court on habeas review by Stone v. Powell, 428 U.S. 465, 494 (1976).
An "opportunity for full and fair litigation" means just that: an opportunity. If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978), accord Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002), cert. denied, 537 U.S. 1196 (2003).
Because Texas provides the processes whereby petitioner could have obtained full and fair litigation of his Miranda claim as it relates to the Fourth Amendment, Stone precludes habeas relief on the claim.
VIII. TRIAL COURT ERROR
Petitioner further claims that the trial court erred when, during jury deliberations, it answered a note from the jury regarding trial testimony without marking the note as an exhibit, reading the note into the record, and procuring petitioner's or his attorney's presence before responding to the note. ( See Pet. at 7 and 8A.) The alleged trial error potentially raises a due process violation caused by an ex parte communication between the trial judge and the jury, as well as a claim that the trial court erred in the instructions given to the jury in response to the jury note.
A. Ex Parte Communication Ex parte communications between judge and jury may violate a defendant's due process rights. See United States v. Gagnon, 470 U.S. 522, 526 (1985). However,
the mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.Id. (quoting Rushen v. Spain, 464 U.S. 114, 125-26 (1983)). The touchstone of due process analysis is the fairness of the proceeding, not the culpability of the actor. See Smith v. Phillips, 455 U.S. 209, 219 (1982) (addressing due process in context of prosecutorial misconduct). On federal habeas review, the courts must determine whether ex parte communications between judge and the jury "had a prejudicial effect on the defendant and rendered the trial `fundamentally unfair.'" See Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004). A proceeding "is fundamentally unfair if there is a reasonable probability that the [outcome] might have been different had the [proceeding] been properly conducted." See Foy v. Donnelly, 959 F.2d 1307, 1317 (5th Cir. 1992) (making statement in context of trial).
This is the only test for generic violations of due process. If the alleged misconduct rises to the level of constitutional error, the Court need not apply a harmless error test. Darden v. Wainwright, 477 U.S. 168, 183 n. 15 (1986). The Fifth Circuit Court of Appeals has observed, furthermore, that application of a harmless error test would be "superfluous" after a determination that the trial was rendered fundamentally unfair. Kirkpatrick v. Blackburn, 777 F.2d 272, 280 (5th Cir. 1985).
During deliberations, the jury sent the following note to the trial court: "Can we please see Officer Mata 1st 2nd testimonys? Also can we see the son's testimony?" TR at 32. The trial court responded to the note in writing, explaining the state procedure for re-reading disputed testimony to juries. See id. at 33-34. The note and the trial court's response were made part of the trial record. See id. at 32-34. Assuming, without deciding, that the trial court erred in its handling of and responding to the jury note, petitioner's claim nevertheless fails because he has shown no actual prejudice from the error. He has not shown that the trial court's response to the jury note rendered his trial fundamentally unfair. He has shown no reasonable probability that the outcome might have differed had the trial court properly handled the jury note. He has shown no reasonable probability that the trial court would have responded differently to the inquiry had it located petitioner and his attorney and alerted them of the note and proposed response.
Even if the handling of the note were changed in such a manner that the jury insisted on rehearing the entirety of the testimony from Officer Mata and petitioner's stepson, petitioner has shown no reasonable probability that the jury would have rendered a different verdict. The jury's credibility determinations of those two witnesses directly resulted in petitioner's conviction. Petitioner has pointed to nothing in his stepson's testimony that would have altered the jury's determination that Officer Mata was more credible than petitioner's stepson. Nothing before the Court shows that had the jury heard the testimony a second time, a reasonable probability existed that they would have rendered a different verdict. For all of these reasons, this claimed trial error entitles petitioner to no habeas relief.
B. Improper Instruction
Petitioner's claim regarding the handling of and response to the jury note can also be reasonably construed as a claim that the trial court improperly instructed the jury in response to the jury inquiry. However, evidentiary rulings and rulings made during a state trial regarding the instructions to be given to the jury are matters of state law that are not subject to re-examination by the federal courts. It is not "the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner is thus entitled to federal habeas relief due to trial error only if "the error `had substantial and injurious effect or influence in determining the . . . verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
[U]nder Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict. We recognize, however, that if our minds are "in virtual equipoise as to the harmlessness," under the Brecht standard, of the error, then we must conclude that it was harmful.Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)). To be entitled to federal habeas relief due to a trial error, petitioner must show the error actually prejudiced him. Brecht, 507 U.S. at 637.
"Improper jury instructions in state criminal trials do not generally form the basis for federal habeas relief." Tarpley v. Estelle, 703 F.2d 157, 159 (5th Cir. 1983) (citing Cupp v. Naughten, 414 U.S. 141, 146 (1973)). "A state prisoner seeking federal habeas relief for erroneous jury instructions faces a heavy burden." Reddix v. Thigpen, 805 F.2d 506, 512 (5th Cir. 1986). "Before a federal court may overturn a conviction resulting from a state trial" on a challenge to the instructions given to the jury, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp, 414 U.S. at 146; Reddix, 805 F.2d at 512. That an instruction is "allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72. "In examining habeas claims of improper jury instructions, the `inquiry is not whether there was prejudice to the [petitioner], or whether state law was violated, but whether there was prejudice of constitutional magnitude.'" Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002) (quoting Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986)). On habeas review, federal courts must only determine "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). Thus, the "harmless-error analysis [applies] to cases involving improper instructions." See Neder v. United States, 527 U.S. 1, 9 (1999).
For the same reasons that the Court found no due process violation in the handling of and responding to the jury note, it finds no merit to a claim that the trial court improperly instructed the jury in response to the jury inquiry. Any error in the handling of and responding to the jury note is harmless within the meaning of Brecht.
IX. JURY MISCONDUCT
Petitioner also claims that, during jury deliberations, the jury improperly conversed with the bailiff, and that the bailiff discouraged the jury from requesting specific areas of disputed testimony. (Pet. at 8 and 8A.) The Court reasonably construes this claim as alleging improper influence by the bailiff as well as juror misconduct. A. Improper InfluenceCourts "review alleged improper influence of the jury to determine whether the intrusion affected the jury's deliberations and thereby its verdict, while remaining mindful that the Constitution does not mandate a new trial every time that a juror is placed in a potentially compromising situation." Moody v. Johnson, 139 F.3d 477, 483 (5th Cir. 1998) (citing United States v. Olano, 507 U.S. 725, 738-39 (1993)). Furthermore,
the factual findings arising out of the state courts' post-trial hearings are entitled to a presumption of correctness. The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this pre-sumption. Thus, they must be determined, in the first instance, by state courts and deferred to, in the absence of "convincing evidence" to the contrary, by the federal courts.Rushen v. Spain, 464 U.S. 114, 120 (1983) (citations omitted).
The trial record indeed reveals that there was some conversation between the bailiff and the jury which caused a juror to submit an affidavit in support of petitioner's motion for new trial. See TR at 50-51. The juror therein indicated:
During our deliberations, I questioned a couple of aspects of the testimony of Officer Mata. This included, but was not limited to, the exact location as to where the drugs were "seen to be dropped by the defendant." (Officer Mata's testimony) versus Ms. Washington's (prosecution attorney), words that the defendant had thrown them out away from himself directly in front of him. This point along with a couple of others in Officer Mata's testimony were critical points in our deliberations. . . .
We decided . . . that it would be best to ask the Court via a note given to the bailiff for at least one part of [Officer Mata's] testimony in writing. The bailiff returned with a message that we had not asked for the information in "an appropriate manner". We were told that we could not have just part of a testimony, that we must ask for the entire testimony for the court reporter to prepare, which could take hours. The three different statements and tone of the bailiff indicated that we should refrain from asking for this information. So, we proceeded as jurors to judge the case as best we could from memory, not having been allowed to take notes, reaching in the end a unanimous verdict of guilty. However, my question as to the defendant's innocence was strengthened, when I saw the look on the defendant's face as the verdict was read. It was a look not of angry [sic] or remorse, but of sheer disbelief, as he stared into our faces searching for an answer. I respectfully submit that, as a jury, we did not have the critical information we needed to judge Mr. Anthony Dunkins' case with fairness.Id.
Petitioner raised this claim on direct appeal. The court of appeals found the above affidavit "unclear." See Dunkins v. State, No. 05-99-01564-CR, 2000 WL 1702708, at *1 (Tex.App. — Dallas Nov. 15, 2000, pet. ref'd). It stated that it could not "determine which statements in the affidavit relate what was said by the bailiff and which were the juror's recollection of the trial court's written response delivered by the bailiff." Id. It noted that it could "be that the bailiff paraphrased the trial court's response." Id. Nevertheless, after "considering the entire record" the court of appeals concluded that "it does not appear the affiant's concern with the `exact location' where the drugs were either dropped or thrown by Dunkins was significant in determining his guilt." Id. By affirming the conviction, the court of appeals necessarily found no detrimental effect on the jury's deliberations. When considering petitioner's state writ, the trial court specifically concurred with the court of appeals' decision on these matters. See S.H. Tr. at 53.
This Court defers to the state courts' findings of fact. It appears that the bailiff verbally paraphrased the trial court's written response to the jury's request for trial testimony. The Court has already found no prejudice from the way the trial court handled the note from the jury. It now finds that the juror affidavit does not show prejudice from the bailiff's alleged comments. The juror was concerned about potential differences between Officer Mata's testimony and the prosecutor's closing arguments. S.H. Tr. at 50. Statements and arguments of counsel are not evidence to be considered in reaching a verdict, however. The juror further indicates that, although he had joined in the unanimous verdict of guilty, his "question as to the defendant's innocence was strengthened, when [he] saw the look on the defendant's face as the verdict was read." Id. at 50-51. This "look" was not evidence before the jury during their deliberations.
Furthermore, although the juror states that the jury did not have "critical information" needed to judge petitioner's "case with fairness," the juror also concedes that the jury judged the case as best it "could from memory, not having been allowed to take notes, reaching in the end a unanimous verdict of guilty." Id. It appears that the jury properly performed its function despite the bailiff's comments. Such comments had no detrimental effect on the jury's deliberations. This case, moreover, was essentially a credibility battle between Officer Mata and petitioner's stepson and friend. The balance of the verdict hinged upon whether the jury believed Officer Mata's version of what happened or the stepson's version which was supported by testimony of petitioner's friend, Jamille Davis. The jury found Officer Mata more credible. The comments by the bailiff did not alter that credibility finding. Nothing in the testimony requested by the jury, i.e. the testimony of Officer Mata and petitioner's stepson, would have altered that credibility finding. The jury had the critical information — Officer Mata's testimony that petitioner threw the drugs to the ground and the stepson's testimony that the stepson had thrown the drugs to the ground — sufficient to reach a just and fair verdict, and indeed reached a unanimous verdict based upon the information properly before them.
To the extent petitioner alleges that the bailiff improperly influenced the jury, this claim fails.
B. Juror Misconduct
With regard to petitioner's express claim of juror misconduct, "[t]he general principle is that . . . the party asserting it must show prejudice by the preponderance of the credible evidence." United States v. Benedetti, 587 F.2d 728, 730 (5th Cir. 1979). As amply demonstrated in the preceding section, petitioner has not shown that he was prejudiced by the communication between the jury and the bailiff. The bailiff did not express any view as to the merits of the charges against petitioner. At worst, the bailiff gave the impression that the jury should "refrain" from having testimony read back to them. Moreover, the testimony of Officer Mata and petitioner's stepson was not critical to the jury's deliberations. The jury had sufficient information to fairly find petitioner guilty. The jury's verdict shows that the jury found Officer Mata's testimony more credible rather than the conflicting testimony from petitioner's family members and friend. Because petitioner has established no prejudice from the alleged juror misconduct, this claim also fails.
X. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that his attorney rendered ineffective assistance when he failed to object to (A) faulty evidence; (B) the defective indictment; and (C) the trial court's response to the jury note. ( See Pet. at 7 and 8A.) To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
To determine whether counsel's performance is constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Petitioners must "affirmatively prove prejudice." Id. at 693. To establish prejudice, they must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
A. Failure to Object to Faulty Evidence
Petitioner argues that counsel rendered ineffective assistance by failing to object to faulty evidence used to convict him. (Pet. at 7.) Although petitioner does not identify in his federal petition what "faulty evidence" was used against him, his memorandum in support of his state writ mentions the statements by his stepson to Officer Mata at the time of petitioner's arrest. Counsel, however, had no basis to object to the admission of such statements. Attorneys do not render deficient performance when they fail to assert meritless objections. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). Petitioner, moreover, has demonstrated no prejudice from the alleged failure to object. He has not shown a reasonable probability that, but for the failure to object, the outcome of his trial would have been different.
Petitioner states in his memorandum in support of his state writ that Officer Mata presented perjured testimony. See S.H. Tr. at 25. While such a claim is more appropriately considered in the context of prosecutorial misconduct, a claim of ineffective assistance due to failing to object to alleged perjured testimony fails because petitioner has shown no valid reason for objecting to Officer Mata's testimony. Petitioner has not shown that counsel knew that the officer was presenting perjured testimony, that the testimony was actually false, or that the trial court would have sustained an objection to the testimony if made. A claim of ineffective assistance based upon a failure to object to alleged perjured testimony entitles petitioner to no habeas relief.
To obtain collateral relief based upon prosecutorial misuse of perjured testimony, movant must show that the testimony was actually false, the prosecutor knew it was false, and the evidence was "material, i.e., a highly significant factor reasonably likely to have affected the jury's verdict." Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir. 1994); accord Hafdahl v. Johnson, 251 F.3d 528, 532-33 (5th Cir. 2001). The United States Supreme Court has "treated `reasonable likelihood' as synonymous with `reasonable possibility' and thus ha[s] equated materiality in the perjured-testimony cases with a showing that suppression of the evidence was not harmless beyond a reasonable doubt." See Strickler v. Greene, 527 U.S. 263, 299 (1999) (Souter, J., concurring). The Supreme Court has defined the harmless-beyond-a-reasonable-doubt standard as no "`reasonable possibility' that trial error contributed to the verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In this instance, petitioner has not established that Officer Mata's testimony was false. Nor has he shown that the prosecutor knew it was false. Thus, any claim of prosecutorial misconduct based upon suborning perjured testimony would necessarily fail.
To the extent this ineffective-assistance claim is based upon some other "faulty evidence" used against petitioner, it fails as conclusory. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). B. Failure to Object to Defective Indictment
Petitioner also contends that his attorney rendered ineffective assistance when he failed to object to the defective indictment. ( See Pet. at 7 and 8A.) However, the state courts have already determined that the indictment satisfied the requirements of state law, and this Court will not review that determination. Because the indictment was not defective under state law, counsel had no reason to object to it. Attorneys need not assert a futile objection to render effective representation. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). In the absence of a deficiency of counsel, this ineffective-assistance claim fails.
C. Failure to Object to Trial Court's Response to Jury Note
Petitioner also argues that his attorney rendered ineffective assistance when he failed to object to the trial court's response to the jury note. ( See Pet. at 8A.) The Court has already found that the trial court's response to the jury note did not render petitioner's trial fundamentally unfair. It has also found that to the extent the trial court erred in its response to the jury note, such error was harmless. For the same reasons, petitioner has not shown that he was actually prejudiced by his attorney's failure to object to the trial court's handling of and response to the jury note. In the absence of prejudice, this ineffective-assistance claim fails.
XI. STATE CONSIDERATION OF CLAIMS
Petitioner raised each of his federal claims in his state writ. The Texas Court of Criminal Appeals denied that writ and thus adjudicated the claims on the merits. Petitioner also raised his third federal claim in his direct state appeal. The court of appeals denied that claim on its merits. The decisions of the state court with respect to petitioner's claims is consistent with the applicable Supreme Court precedent. The decisions involved no unreasonable application of Supreme Court precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court.
Petitioner presents nothing to undermine confidence in his conviction. He has demonstrated no reasonable probability that the outcome of trial would have differed in the absence of the alleged deficiencies of counsel. He presents nothing that indicates the result of his trial is unreliable or that the proceedings were fundamentally unfair. Under applicable Supreme Court standards and the AEDPA standards, petitioner is entitled to no habeas relief on the claims raised in the instant petition.
XII. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
XIII. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.