Opinion
CIVIL ACTION NO. 4:02-CV-449-A
November 4, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner James Aaron Dyson, TDCJ-ID #815938, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Ferguson Unit in Midway, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Joe Cruz was a member of the Latin Lench Mob gang. (5 Rep. R. at 25, 39-41, 43.) On December 1, 1996, Cruz shot and killed Omar Alvarado in a dispute over a girl. ( Id. at 89-90.) Alvarado was a member of the Raza 13 gang. ( Id. at 149.) Dyson was also a member of Raza 13 and took Alvarado's death extremely hard. ( Id. at 146, 151; 6 Rep. R. at 28, 32, 71-75, 82-84.) On May 27, 1996 while out of custody and awaiting trial, Cruz was walking in downtown Fort Worth to his lawyer's office. (5 Rep. R. 17-21.) Dyson approached Cruz, told Cruz that he had killed his "homeboy," and shot and wounded Cruz. ( Id. at 22, 94.) Dyson confessed to the shooting and stated he had done it because Cruz had "killed my homeboy." ( Id. at 98-99.)
Cruz was convicted of the murder in 1998 and sentenced to 30 years' confinement. (Federal Pet. at 8.)
"Homeboy" is a slang term for a fellow gang member. (5 Rep. R. at 164.)
Dyson was indicted for engaging in organized criminal activity. (State Habeas R. at 71.) On January 29, 1998, a jury found him guilty and assessed punishment at 50 years' confinement and a $10,000 fine. ( Id. at 72.) The Second District Court of Appeals affirmed the judgment, and the Texas Court of Criminal Appeals refused Dyson's petition for discretionary review on March 29, 2000. Dyson v. State, No. 2-98-096-CR (Tex.App.-Fort Worth Sept. 16, 1999, pet. ref'd) (not designated for publication). Dyson filed one state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Dyson, No. 51,197-01 (Tex.Crim.App. Feb. 13, 2002) (not designated for publication). Dyson filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on May 14, 2002.
D. ISSUES
Dyson raises two issues:
1. His Sixth Amendment right to compulsory process was violated.
2. Trial counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell believes Dyson has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002), petition for cert. filed, (U.S. June 13, 2002) (No. 01-10886).
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).
2. Compulsory Process
Dyson asserts that his Sixth Amendment right to meaningfully cross-examine Cruz was violated when the trial court allowed Cruz to assert his Fifth Amendment right against self-incrimination and refuse to answer questions relating to his previous relationship with Alvarado. (Federal Pet. at 16.) At the time of Dyson's trial, Cruz had been indicted for Alvarado's murder, but had not yet been tried. (5 Rep. R. at 17.) When questioned by Dyson's lawyer about the details of Alvarado's murder and his past relationship with him, Cruz invoked the Fifth Amendment and refused to answer the questions. ( Id. at 17-18, 27-36.)
a. Procedural default
Dyson did not raise this issue on appeal, but did raise it in his state habeas corpus application. (State Habeas R. at 13.) The trial court, in denying relief on this claim, stated that the issue was not raised on appeal as it should have been. (State Habeas R. at 49, 70.) The Court of Criminal Appeals denied the application on the trial court's findings. Cockrell now argues that Dyson's claim is procedurally defaulted based on the Court of Criminal Appeals' express and unambiguous finding that Dyson should have raised the claim on direct appeal. (Resp't Answer at 18.)
Federal review of a claim is procedurally barred if the last state court to consider the claim clearly based its denial of relief on procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Coleman v. Thompson, 501 U.S. 722, 729 (1991). In this case, the trial court and the Court of Criminal Appeals clearly stated that relief was denied on this claim based on Dyson's procedural default by failing to raise the claim on direct appeal. What defeats application of a procedural bar in this case, however, is the reasoning behind the state courts' procedural-default holdings. In holding that Dyson had defaulted this claim, the state habeas court, and by implication the Court of Criminal Appeals, stated that the claim could not be raised for the first time in a post-conviction writ and should have been initially raised on appeal, relying on In re Sanchez and In re Banks. (State Habeas R. at 49.) Both cases hold that errors based on statutory grounds, such as the improper exclusion of a veniremember under a state statute and a violation of the statutory Interstate Agreement on Detainers, are not cognizable in a post-conviction writ. Sanchez, 918 S.W.2d at 527; Banks, 769 S.W.2d at 540. These cases go on to explain that errors raising denials of constitutional rights are properly raised, even for the first time, in a post-conviction writ. Sanchez, 918 S.W.2d at 527; Banks, 769 S.W.2d at 540. Dyson's claim was clearly based on the United States Constitution and not on any state statutory provision. (State Habeas R. at 13.) It would be erroneous to honor a presumption of procedural default where no such default existed. Sinclair v. Wainwright, 814 F.2d 1516, 1522 (11th Cir. 1987); Pedrero v. Wainwright, 590 F.2d 1383, 1390 (5th Cir.), cert. denied, 444 U.S. 943 (1979). Indeed, for the presumption of procedural default to apply, the procedural default must be clearly and correctly applied by the state courts. Sinclair, 814 F.2d at 1522. Thus, it would be improper to apply a procedural bar in this case.
918 S.W.2d 526, 527 (Tex.Crim.App. 1996).
769 S.W.2d 539, 540 (Tex.Crim.App. 1989) (op. on reh'g).
b. Compulsory process and self-incrimination
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." U.S. CONST. amend. VI. The Compulsory Process Clause is not limited to providing a subpoena power, but extends to the right to present evidence to the fact-finder. Taylor v. Illinois 484 U.S. 400, 407-09 (1988). This clause prohibits a state from arbitrarily denying a defendant "the right to put on the stand a witness . . . whose testimony would have been relevant and material to the defense." Washington v. Texas, 388 U.S. 14, 23 (1967). The guarantees of a face-to-face confrontation with witnesses at trial and of the right to cross-examine those witnesses serve to protect the integrity of the fact-finding process in criminal trials. Maryland v. Craig, 497 U.S. 836, 850 (1990). The issue this court is faced with is whether allowing Cruz to refuse to answer questions about his involvement in Alvarado's murder violated Dyson's right to compulsory process.
It is important to point out that Dyson's Sixth Amendment right to compulsory process does not trump, and must yield to, Cruz's Fifth Amendment right against self-incrimination. Brown v. Cain, 104 F.3d 744, 749 (5th Cir.), cert. denied, 520 U.S. 1195 (1997); Roussell v. Jeane, 842 F.2d 1512, 1516 (5th Cir. 1988); accord Liegakos v. Cooke, 106 F.3d 1381, 1387 (7th Cir. 1997). Indeed, Cruz was under indictment for Alvarado's murder; thus, his testimony could have been used against him at his trial, and he was entitled to invoke the Fifth Amendment. United States v. Bowling, 239 F.3d 973, 977 (8th Cir. 2001); United States v. Smith, 342 F.2d 525, 527 (4th Cir.), cert. denied, 381 U.S. 913 (1965); cf. Ohio v. Reiner, 532 U.S. 17, 21-22 (2001) (holding even though witness denied involvement in crime, witness could claim Fifth Amendment privilege because of defendant's theory witness was solely responsible).
Further, in order for Dyson to establish a violation of the Compulsory Process Clause, he must show more than the mere absence of Cruz's testimony at trial. Janecka v. Cockrell, 301 F.3d 316, 326 (5th Cir. 2002). He "must at least make some plausible showing of how [Cruz's] testimony would have been both material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Dyson argues that Cruz's testimony about his past argument with Alvarado and Dyson "would show a nongang motive for [Dyson's] shooting of Cruz." (Federal Pet. at 16.) This rationale is vague at best. The evidence showed that Dyson, Cruz, and Alvarado were all gang members. The fact that they had an argument before the two shootings does not negate the gang overtures to the crimes. Further, a police officer testified that Dyson, Alvarado and Cruz had had a fight over a girl before Cruz killed Alvarado and that it did not appear that Dyson's crime was gang related. (6 Rep. R. at 41-42.) This is the very evidence Dyson claims should have been admitted. Thus, Dyson's right to compulsory process was not violated. E.g., Janecka, 301 F.3d at 326-27.
3. 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.
Dyson's complaints about counsel were reviewed and rejected during state collateral-review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Dyson asserts that trial counsel was constitutionally ineffective because he:
1. did not conduct proper pretrial discovery or investigation to counter the State's evidence of Dyson's prior bad acts;
2. failed to investigate, interview, and prepare the defense witnesses;
3. erroneously introduced Dyson's confession into evidence;
4. failed to familiarize himself with the law regarding organized crime offenses; and
5. did not inform the trial court of jury misconduct.
For the following reasons, Dyson has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
a. Extraneous offense evidence
Dyson first argues that counsel was constitutionally ineffective because he did not conduct either pretrial discovery or an investigation to prepare for the State's evidence of Dyson's prior bad acts. (Federal Pet. at 9.) Specifically, Dyson points to the State's evidence, admitted during its case-in-chief, that Dyson was affiliated with an Asian gang before he became a member of Raza 13. Dyson asserts that because this was impermissible conformity-of-character evidence, counsel should have filed a pretrial motion seeking notice that the State was going to use this evidence, which would have prevented counsel from being surprised by this testimony. See TEX. R. EVID. 404(b). (Pet'r Reply Br. at 13.)
During the guilt-innocence phase of the trial, an expert on gangs, Tim Gilpin, testified that before Dyson became a member of Raza 13, he associated with an Asian gang, the Loa Crips. (5 Rep. R. at 146, 151.) Counsel objected to this evidence and argued that it was not relevant. ( Id. at 153-54.) The State asserted that the evidence was introduced to rebut Dyson's insinuation during cross-examination of another witness that Dyson had not engaged in gang activities. ( Id. at 109, 154.) The trial court overruled the objection. ( Id. at 154.)
Although evidence of unadjudicated misconduct is generally inadmissible as character evidence under rule 404(b), such evidence is admissible if it has relevance apart from its tendency to prove a witness's character. Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990) (op. on reh'g). A party may therefore introduce such evidence if it logically serves to make an elemental fact more or less probable, if it serves to make an evidentiary fact that inferentially leads to an elemental fact more or less probable, or if it serves to make defensive evidence undermining an elemental fact more or less probable. Beasley v. State, 838 S.W.2d 695, 701 (Tex.App.-Dallas 1992, pet. ref'd), cert. denied, 510 U.S. 969 (1993). In this case, the evidence that Dyson was associated with another gang before he joined Raza 13 helped undermine Dyson's evidence that he was not involved in gang activity. Further, because the State's evidence was offered in rebuttal to Dyson's evidence that he was not involved in gang activity, the State would not have been obligated to include rebuttal witnesses in its notice of extraneous offenses even if counsel had filed a motion for such notice. Hoagland v. State, 494 S.W.2d 186, 189 (Tex.Crim.App. 1973); Creekmore v. State, 860 S.W.2d 880, 892 (Tex.App.-San Antonio 1993, pet. ref'd). Thus, counsel was not deficient. 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) (holding counsel not deficient for failing to make meritless argument).
Dyson next asserts that counsel was ineffective for failing to conduct either pretrial discovery or an investigation to prepare for the State's punishment evidence of Dyson's prior bad acts. (Federal Pet. at 9.) Dyson focuses on the State's evidence that Dyson was a disciplinary problem at school, had hit a teacher, and showed no remorse for past bad behavior. ( Id. at 9-10.) Dyson asserts that if counsel had requested pretrial notice of this evidence, "he could have interviewed these witnesses beforehand and prepared accordingly." ( Id. at 10.)
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 2002).
Carol Hensarling, the assistant principal at Dyson's high school, testified that he had 40 to 50 disciplinary problems during one year at the school and that she believed that he would never conform to authority. (7 Rep. R. at 13-15.) She further detailed several of the disciplinary incidents involving Dyson. ( Id. at 22-28.) Cindy Chickering, a teacher at Dyson's alternative school, stated that Dyson hit her while he was fighting with another boy. At the time, Chickering was undergoing chemotherapy treatment for cancer. ( Id. at 45-48.) A crisis counselor at Dyson's high school, David Maida, testified that Dyson laughed at Maida's attempts to help and that he had no remorse for any of his prior violent acts. ( Id. at 61-64.) Counsel cross-examined each of these witnesses and delved into the fact that Dyson has a learning disability, which could have contributed to the disciplinary problems. ( Id. at 29-31, 57-58, 66-68.)
Failure to request notice of intent to introduce extraneous offenses at punishment is not per se ineffective assistance of counsel. Rodriguez v. State, 981 S.W.2d 357, 359 (Tex.App.-San Antonio 1998, no pet.). Dyson does not specify what would have been the result if counsel had filed an article 37.07 motion, what further would have been discovered if counsel had questioned these witnesses before trial, or that the evidence was inadmissible. There is nothing in the record to show that counsel was unprepared to address the extraneous bad act evidence. As such, Dyson's claim is insufficient to support an ineffective-assistance-of-counsel finding. Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987).
b. Witnesses
In his second argument directed at counsel's performance, Dyson argues that witnesses were not properly investigated, interviewed, or prepared for their testimony. (Federal Pet. at 10-12; Pet'r Reply Br. at 6-12.)
First, he asserts that counsel should have contacted and called as a witness Terry Craig, who knew of Dyson's personal grief over Alvarado's death. In other words, Craig could have testified that Dyson shot Cruz because of his grief and not because of a gang motive. (State Habeas R. at 27.) Counsel called Alvarado's father, Alvarado's sister, Dyson's father, and Dyson's mother to testify that Dyson was deeply saddened by Alvarado's death. (6 Rep. R. at 28, 31-32, 71-74, 82.) Craig's testimony would have been merely cumulative of these witnesses' testimony; thus, Dyson cannot show prejudice as a result of counsel's failure to contact or call Craig as a witness. Emery v. Johnson, 139 F.3d 191, 197 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Motley v. Collins, 18 F.3d 1223, 1228 (5th Cir. 1994), cert. denied, 513 U.S. 960 (1994).
Robert Aguirre was with Dyson when he shot Cruz. (5 Rep. R. at 89.) The State called Aguirre as a witness and elicited the fact that Dyson claimed to be a member of Raza 13 and that he had flashed gang signs before. ( Id. at 105, 116.) Dyson's second assertion is that counsel should have interviewed Aguirre before the trial so he "would have been better prepared to cross-examine Aguirre. Aguirre wold have testified that [Dyson] was not in [Raza 13]. He also would have testified that [Dyson's] shooting of Joe Cruz was not gang related." (Federal Pet. at 11; State Habeas R. at 30.) In an affidavit, counsel asserted that he had contacted Aguirre and determined his testimony would aid in the defense strategy of trying to show the shooting was not gang related:
I had known Robert as a client prior to my representing Mr. Dyson. Harry Harris, a local attorney, represented Robert Aguirre. I did speak to Mr. Aguirre through Mr. Harris. Mr. Harris informed me when he struck a deal with the District Attorney on Robert's behalf. . . . The plea bargain called upon Robert to testify truthfully. The agreement did not call for Robert to say Mr. Dyson was a gang member. Mr. Aguirre testified that he and Mr. Dyson were good friends and about how they "knew" people in gangs and that the trial strategy that my client had gone with was to attack that portion of [the] state's contention that alleged this shooting was gang related or in furtherance of gang affiliation. (State Habeas R. at 43.)
The habeas court found that counsel was not ineffective on this basis, and the Court of Criminal Appeals denied relief. ( Id. at 46, 70.) For purposes of federal habeas review, state court findings of fact made in the course of deciding an ineffectiveness claim are entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1). Unless Dyson rebuts them by clear and convincing evidence, therefore, this court is required to accept, as conclusive, both the factual findings and the credibility choices of the state courts. Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990). The state habeas courts implicitly made a credibility choice in favor of counsel's assertions, and because Dyson has failed to rebut this presumption with clear and convincing evidence of its impropriety, this court cannot second-guess the choice and must accept it as conclusive.
Indeed, during counsel's cross-examination of Aguirre, Aguirre stated that Dyson was not a full-fledged member of Raza 13 and that Dyson was very upset over Alvarado's death as were many of Alvarado's non-gang friends. ( Id. at 108-10, 113.) Counsel's cross-examination elicited the very facts Dyson alleges would have been discovered if counsel had interviewed Aguirre before trial. Dyson has not shown deficient performance. See Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983).
Third, Dyson argues that counsel should have contacted 30 to 40 of Dyson's friends and family before trial. (Federal Pet. at 11; State Habeas R. at 21-22.) Dyson does not allege what these witnesses would have testified to, whether they were willing to testify, or how the result of the trial would have been affected by their testimony. The limited and conclusory information Dyson provides fails to establish either deficient performance or prejudice. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp.2d 398, 400 (N.D. Tex. 2001).
Fourth, Dyson argues that counsel did not adequately interview Detective Michael W. Hanson before calling him as a witness. (Federal Pet. at 12.) As a result, Hanson's testimony gave "the jury the impression that [Dyson's] shoot[ing] of Joe Cruz was gang related," which counsel was not prepared for. ( Id.; Pet'r Reply Br. at 8.) Counsel called Hanson as a witness and elicited testimony that Hanson did not believe the shooting was gang related when he sent the case to the district attorney. (6 Rep. R. at 42.) On cross-examination, Hanson stated that he realized gang activity was involved upon further investigation. ( Id. at 43.) Even though this diluted the effect of Hanson's earlier answer, it was still a reasonable trial strategy to call Hanson as a witness to have a law enforcement officer testify that he, at some point, did not believe the shooting was gang related. This court will not second-guess trial strategy. Thus, counsel was not deficient. Johnson v. Cockrell, 301 F.3d 234, 238-39 (5th Cir. 2002); Lagrone v. Cockrell, No. 4:99-CV-521-G, 2002 WL 1968246, at *27-28 (N.D. Tex. Aug. 19, 2002).
Finally, Dyson asserts that counsel should have prepared Dyson's parents for their testimony so they would know what questions to anticipate. (Federal Pet. at 12; State Habeas R. at 23-25.) Dyson does not assert how the result of the trial would have been different if counsel had told Dyson's parents what questions he would be asking. Indeed, a review of their testimony shows that they testified as to Dyson's grief over Alvarado's death. (6 Rep. R. at 69-89.) It is unclear what preparation would have added to this testimony. Thus, Dyson has failed to plead and prove the requisite Strickland prejudice even if counsel's failure to prepare these witnesses was deemed deficient performance.
c. Introduction of confession
Dyson alleges that counsel was ineffective for introducing his confession into evidence. (Federal Pet. at 13-14; Pet'r Reply Br. at 14-17.) After Dyson's arrest, he gave a statement in which he admitted shooting Cruz because Cruz had shot his "homeboy [Alvarado]" and that he did not believe he had done anything wrong. (Federal Pet. at Ex. 1 pp. 2-3.) Before trial, counsel filed a motion to suppress the statement based on the fact that it was given in the absence of counsel. (Clerk R. at 31.) The trial court overruled the motion and held that the statement was admissible. (6 Rep. R. at 92.) During guilt-innocence, Dyson's counsel introduced Dyson's statement into evidence. ( Id. at 98.) In response to Dyson's state habeas application, counsel stated that his reason for introducing the statement was trial strategy:
The purpose in introducing the statement was to show that the motive for the shooting was "personal" and was for the purpose of evening the death of [Alvarado] and not for any gang-related purpose. The reason for this is obvious, the offense of Aggravated Assault is 2-20, the punishment range for the enhanced offense with "organized crime" [is] 5-life.
I discussed the issue of whether to introduce the statement made by my client. I conferred with my client prior to taking this step. His father was present when we had this conversation.
There was no question that my client was the person who followed the injured party from his court setting to the Texaco station a few blocks away. There was also no question that my client fired the shotgun and had caused serious bodily injury. The State had proven these preliminary facts long before I had the discussion with my client about introducing his statement. (State Habeas R. at 43-44.)
This court will not second-guess counsel's reasoned trial strategy. Cf. Livingston v. Johnson, 107 F.3d 297, 307 (5th Cir.), cert. denied, 522 U.S. 880 (1997) (holding defense counsel not ineffective in failing to introduce defendant's confession at punishment phase). Dyson argues that because counsel did not adequately investigate the case before trial, as evidenced by his prior ineffective-assistance-of-counsel allegations, his reasoning cannot be deemed a reasonable trial strategy. (Pet'r Reply Br. at 15.) As discussed above, however, counsel was not ineffective in his investigation and pretrial handling of Dyson's case.
d. Familiarity with the law
Dyson asserts counsel was ineffective for failing to familiarize himself with the law applicable to engaging in organized criminal activity. (Federal Pet. at 14-15.) In response to Dyson's state habeas application, counsel showed that he had a firm grasp of the import of such a charge:
During the trial I explained to my client that gang membership was not in and of itself the issue. I explained that gang membership and an act did not create the offense. That an act in furtherance of gang affiliation, as in the indictment, was the issue. I did file a motion to quash the indictment, that motion was heard, overruled and ruled on by the trial court. The issue was taken up on direct appeal. (State Habeas R. at 43.)
This is, in fact, a correct statement of the applicable law. TEX. PENAL CODE ANN. §§ 71.02 (Vernon Supp. 2002); Dowdle v. State, 11 S.W.3d 233, 235-36 (Tex.Crim.App. 2000); Barber v. State, 764 S.W.2d 232, 235 (Tex.Crim.App. 1988). Counsel was not deficient.
e. Jury misconduct
Finally, Dyson argues that counsel failed to immediately notify the court of jury misconduct. (Federal Pet. at 15; State Habeas R. at 24, 26.) Counsel directly refuted this claim in his state habeas affidavit: "I moved for mistrial as soon as I became aware of the conversation of the jurors in the bathroom, there was a hearing and the jurors were questioned by the judge out side [sic] of the presence of the others." (State Habeas R. at 44.) The state courts determined that counsel's version of events was credible and that he was not defective. ( Id. at 47-48, 70.) Dyson has failed to overcome the presumption of correctness of these findings. Further, Dyson has failed to show how he was prejudiced by counsel's alleged delay. The issue was raised to the trial court, thoroughly investigated, and raised on direct appeal. (7 Rep. R. at 3-5; Clerk R. at 92-93; Dyson, No. 2-98-096-CR, slip op. at 32-34.) Dyson has not shown how the two-day delay harmed his ability to present this alleged error.
4. Summary
Dyson is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Dyson 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.
II. RECOMMENDATION
Dyson's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until November 25, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 25, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.