Opinion
Civil Action No. 6:99-CV-O56-C
March 29, 2002
ORDER
On this day the Court considered Petitioner Samuel Herrera Garcia, Jr's ("Garcia") pro se Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254. Respondent Janie Cockrell ("Respondent") has filed an Answer with Brief in Support, along with copies of Garcia's relevant state court records. Although Garcia was granted an extension of time within which to me a response to the answer, he did not file a response and has stated that he will rely on his petition and the accompanying Memorandum of Law. After considering all relevant evidence and arguments, the Court is of the opinion that Garcia's Petition for Writ of Habeas Corpus must be denied.
BACKGROUND
Respondent has lawful custody of Garcia pursuant to a judgment and sentence of the 119th Judicial District Court of Tom Green County, Texas, in Cause Number B-95-0641-S, styled The State of Texas v. Samuel Herrera Garcia, Jr. Garcia was charged by indictment with the felony offense of possession of methamphetamine and two prior convictions ware alleged to enhance his punishment. Although Garcia pleaded not guilty, a jury found him guilty of the offense on February 21. 1996. He subsequently pleaded time to the two enhancement paragraphs and the jury assessed punishment at imprisonment for life.
The Respondent also has custody of Garcia pursuant to a judgment and sentence of the 119th Judicial District Court of Tom Green County, Texas, in Cause Number CR91-0256-B for delivery of a controlled substance. Garcia pleaded guilty in that cause number an October 16, 1991, and was sentenced to twenty-five years' incarceration. Garcia was on parole in Cause Number CR91-0256-B at the time he committed the offense in Cause Number B-95-0641-S, but his parole was revoked. Garcia does not challenge his conviction and sentence or the revocation of parole in Cause Number CR91-0256-B in the instant petition.
Garcia's conviction and sentence were affirmed on appeal by the Third Court of Appeals on July 24, 1997, and his petition for discretionary review was refused by the Texas Court of Criminal Appeals on January 14, 1998. Garcia filed one state habeas application challenging his conviction and sentence in Cause Number B-95-0641-S. The state district court conviction a hearing by way of affidavits, entered findings of fact and conclusions of law, and recommended that the application be denied. The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing on May 19, 1999. See Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000) (holding that a claim is adjudicated on the merits when the Texas Court of Criminal Appeals explicitly adopts to trial court's findings of fact and conclusions of law); Smith v. Collins, 977 F.2d 951, 956 (5th Cir. 1992) (noting that the Texas Court of Criminal Appeals adopts the findings and conclusions of the trial court when it denies a state habeas application "without written order on the findings of the trial court").
Although District Judge Dick Alcala a presided over Garcia's trial and sentencing, Senior District Judge Curt F. Steib was assigned to hear the state habeas proceedings. Judge Steib did not conduct a live evidentiary hearing, but he did order that Garcia's defense counsel file an affidavit addressing Garcia's allegations of ineffective assistance, and he allowed Garcia to file a response to the affidavit addressing. See Fahle v. Cornyn, 231 F.34 193, 196 (5th Cir. 2000) (finding that a hearing on to merits may be conducted by affidavit and a petitioner is not entitled to a federal evidentiary hearing when he does not demonstrate that the hearing by affidavit was constitutionally insufficient). Judge Steib also took judical notice of the "entire tile in the custody of the Clerk of Tom Green County, Texas, and considered the following: Garcia's 71-page state habeas application, the 28 attached exhibits, and Garcia's addenda to his original petition; the indictment, the court's charge on guilt/innocence, the court's charge on punishment, and the corrected Judgment on Jury Verdict of Guilty in Cause No. B-95-0641-S; Garcia's Motion for New Trial and the attached affidavit from juror Maria P. Robledo; the three docket sheets in Cause No-B-95-O641-S; the judgment, unpublished opinion, and mandate from the Third Court of Appeals, which affirmed Garcia's conviction and sentence; Garcia's motion to recuse Judges Alcala and Sutton for bias; the trial court order denying Garcia's motions to recuse and to appoint counsel and an investigator to assist with his state habeas proceedings; the state trial court's order designating the issues to be resolved on the state habeas application; copies of five additional filings by Garcia and the trial court's orders regarding, these filings; Garcia's motion to recuse all sitting and visiting judges and Judge Steib's order refusing to recuse himself; Garcia's motion to correct the transcript and statement of facts and his motion for hearing and inspection of audio tapes, court reporter's notes, and computer disk; the Administrative Assignment of Judge Barbara L. Walter's to hear the motion to recuse Judge Steib anther order denying the motion; a letter and an affidavit from Garcia's trial and appellate counsel, John Young; and Garcia's initial response to trial counsel's letter and affidavit, and two supplemental responses he subsequently filed.
Garcia filed his federal petition on June 7, 1999, but it is deemed to be filed as of June 3, 1999, the date he signed and dated it. See Spotville v. Grin, 149 F.3d 374, 377 (5th Cir. 1998) ("[A] pro se prisoner's habeas petition is filed for purposes of determining the applicability of the [Antiterrorism and Effective Death Penalty Act of 1996], when he delivers the papers to prison authorities for mailing"). This Court has jurisdiction over the subject matter and parties pursuant to 28 U.S.C. § 2241 and 2254.
STANDARD OF REVIEW
Garcia's petition was filed after April 24, 1996; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (determining that AEDPA applies to noncapital habeas petitions filed after April 24, 1996, the effective date of the statute); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997) (holding that the relevant date for determining applicability of the AEDPA to habeas corpus petitions is the date the actual petition is filed). The AEDPA enacted the present 2254(d), which provides a state prisoner may not obtain federal habeas 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 byte 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.
"Section 2254(d)'s deference operates when the state court has adjudicated the petitioner's claim an the merits." Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001). "lathe context of federal habeas corpus proceedings, adjudication `on the merits' is a term of art that refers to whether a [state] court's disposition of the case was substantive as opposed to procedural" Neal v. Puckett, 2002 WL 407382, at *3 (5th Cir. March 15, 2002); See Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997) (noting that "adjudication on the merits" refers to the "court's disposition of the case whether substantive or procedural," rather than the quality of the review). "Under AEDPA, clearly established federal law `refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision'" Valdez v. Cockrell, 274 F.3d at 946 (quoting Williams v. Taylor, 529 U.S. 329, 412 (2000)).
Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact. Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000) (citing Williams v. Taylor, 529 U.S. at 412-13) Under the "contrary to" clause of § 2254(d)(1). "a federal habeas court may grant the writ 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 Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. at 413; Hill v. Johnson, 210 F.3d at 485. "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoners case." Id. "Distinguishing between an unreasonable ad an incorrect application of federal law, [the Supreme Court has] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1918 (2001) (citing Williams v. Taylor, 529 U.S. at 410-11).
Section 2254(d)(2) provides the standard of review for questions of fact that have been "adjudicated on the merits" in the state courts. Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000).
AEDPA requires the federal habeas court "to presume state court findings of fact to be correct unless the petitioner rebuts that presumption by clear and convincing evidence." Valdez v. Cockrell, 274 F.3d at 947 (citing 28 U.S.C. § 2254(e)(1)). See Jackson v. Anderson, 112 F.3d 823, 824 (5th Cir. 1997) (noting that the burden of rebutting the presumption was made more onerous by the AEDPA amendments to § 2254).
GROUNDS FOR REVIEW
The Court understands Garcia to raise the following grounds for review in his federal petition:
Garcia has attached a copy of his state habeas application to his federal petition. Although he states in his federal petition that he is "incorporating by reference all grounds of error raised in [his] state application," he specifically listed eight (8) grounds for review on his § 2254 filing form, provided page numbers that reference the attached state application and memorandum, and crossed out large portions of the state application. The Court shall therefore address only the eight grounds specifically listed on Garcia's § 2254 filing form.
Although Respondent has restated and reorganized Garcia's grounds for review, this Court shall address Garcia's grounds for review as set out in his petition.
1. The trial court erred in failing to grant Garcia's request for a psychiatric examination to determine his competency and there was evidence to demonstrate that he was not competent at the time of trial
2. The trial court erred in failing to sustain defense counsel's objections to the prosecutor's closing argument and in denying the request for a mistrial.
3. The prosecutor used in inflammatory and unlawful statements in his dosing argument.
4. There is new evidence to demonstrate Garcia's innocence and support his claims of ineffective assistance of counsel.
5. The Court of Appeals erred in affirming the trial court's denial of Garcia's motion for a new trial based on jury misconduct
6. The trial court erred in sustaining the prosecution's objection to defense counsel's inquiry into the credibility of a confidential informant at the pretrial suppression hearing.
7. Garcia's appellate counsel was constitutionally ineffective for failing to raise the prosecutor's improper argument on appeal; for failing to challenge the denial of the motion to suppress on appeal; for failing to file a motion to correct and amend the record on appeal; and for failing to raise the issue of the confidential informant's credibility on appeal.
8. Garcia's trial counsel was constitutionally ineffective because he did not object to or argue against the prosecution's improper tactics; he did not object to the improper or broken chain of custody when the drugs were introduced; and he did not object when extraneous offense evidence was introduced at punishment.
Each of these claims was raised in Garcia's state habeas application or on direct appeal; thus, Garcia has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1). Because each of the claims was addressed by either the state appellate court or the state habeas court, all claims were adjudicated on the merits and are subject to the deference scheme in § 2254(d). Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
DISCUSSION
GROUND ONE: Denial of a competency examination and evidence of incompetency.
Garcia complains that the trial court denied his request for a competency hearing and failed to comply with Article 46.02 of the Texas Code of Criminal Procedure despite the evidence be presented of his irrational behavior. He argues that neither his trial counsel nor the trial court were qualified to determine his competency to stand trial and his incompetency is clearly demonstrated by the opinions of medical personnel in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). To the extent that Garcia complains that the trial court did not comply with Article 46.02. his claim is not cognizable because "legal conclusions that are explicitly grounded in state law may not be reviewed on federal habeas." Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir. 1999). Garcia, however, also argues his competency claims under the Fourteenth Amendment to the Constitution of the United States.
"It is well established that the Due Process Clause cite Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial." Medina v. California, 505 U.S. 437, 439 (1992). The issue of competency may arise in habeas proceedings in two distinct contexts: (1) a petitioner may allege that he was denied procedural due process; that is, he raised a bona fide doubt as to his competency at trial but was denied a hearing or the hearing was constitutionally inadequate; or (2) a petitioner may allege that he was in fact incompetent at the time of trial, "thereby claiming a violation of the substantive right not to be tried and convicted while incompetent. . . ." Carter v. Johnson, 131 F.3d 452, 459 n. 10 (5th Cir. 1997). See United States v. Williams, 819 F.2d 605, 606 (5th Cir. 1987) (noting that competency to stand trial is a substantive right while the right to a competency hearing is a procedural right).
"The competency standard for pleading guilty or standing trial is `whether to defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as a factual understanding of the proceedings against him[.]"'" Mata v. Johnson, 210 F.3d 324, 329 n. 2 (5th Cir. 2000) (quoting Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. Utaited States, 362 U.S. 402 (1960))). "[A] trial court has a duty to hold a competency heating where `the objective facts known to the trial court [are] sufficient to raise a bona fide doubt as to [the petitioner's] competency'" Dunn v. Johnson, 162 F.3d 302, 305 (5th Cir. 1998) (quoting Enriquez v. Procunier, 752 F.2d 111, 113 (5th Cir. 1984)). "In determining whether to grant a competency hearing, the trial court is to consider any history of irrational behavior, defendant's bearing and demeanor in court, and prior medical opinions." Id.
The state habeas court determined that Garcia's counsel made a request for a psychiatric examination and such request led to the trial court's personal interrogation of Garcia on February 13, 1996. The state habeas court further found that "the trial court made the threshold inquiries and found that the defendant was competent," and "[t]here was nothing before the court to indicate otherwise, except Garcia's desire to have himself `checked out'" Finally, the state habeas court concluded that after reviewing the entire record and Garcia's attached exhibits, there was "no evidence indicating Garcia's incompetency to stand trial," and therefore, he was "not wrongfully deprived of a competency hearing. . . ."
The state court record clearly supports this finding. The record shows that Garcia testified under oath at the hearing on February 13, 1996, that he bad visited with his attorney on several occasions; he had not advised his attorney that he was incompetent until the morning of the hearing; he understood that a jury would probably sentence him to more than the forty-year sentence offered by the prosecutor; he had discussed the facts of his case with his attorney; he understood the roles of his attorney and the prosecutor he understood the roles of the judge and the jury he understood that if he did not plead guilty on February 13, 1996, the prosecution could withdraw the plea bargain offer; and he understood that if he did not plead guilty, the trial court was going to set the case for trial in the very near future. Garcia also testified that he did not "feel" that he was competent enough to plead guilty; he had contacted MHMR because he was "hallucinating here and there"; he was on suicide watch at the jail; and he needed an evaluation before he could plead guilty. The trial court concluded that Garcia was competent to stand trial despite his complaints about mental or emotional problems and denied the request for a competency hearing. The state court record also shows that on the first day of trial, February 19, 1996, Garcia personally complained to the trial court that his attorney had failed to file his pro se motions and stated that he had been reading law books while confined in the county jail. He then argued the merits of his motions to the trial court; complained about the performance of his attorney and another attorney that he bad fired; and admitted that he understood his case was going to trial.
"A state court's competency determination is a finding of fact entitled to a presumption of correctness under § 2254(d)(2)." Miller-El v. Johnson, 261 F.3d 445, 454 (5th Cir. 2001). See United States v. Williams, 819 F.2d 605, 607 (5th Cir. 1987) ("[T]he question of a defendant's competency is a question of fact as opposed to a mixed question of law and fact or a question of law."). Garcia has offered no evidence to rebut this presumption.
In fact, the only evidence offered by Garcia to support his incompetency arguments are copies of an internal jail report from the Tom Green County Jail which noted that an inmate had reported Garcia was talking about "killing himself" and that Garcia had requested to be placed on suicide watch, and copies of excerpts from medical examinations performed by TDCJ-ID) subsequent to his trial and conviction. These were the dame exhibits presented to the state habeas court.
"Before the federal district court has a duty to investigate a habeas petitioner's claim of incompetency, the petitioner must show that there are sufficient facts to `positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during trial.'" Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998) (quoting Washington v. Johnson, 90 F.3d 945, 950 (5th Cir. 1996)). The Court has examined Garcia's claim and finds that he has presented no evidence sufficient to demonstrate "a real, substantial and legitimate doubt as to [his] mental capacity to meaningfully participate and cooperate with counsel during trial" Id.
Accordingly, the Court finds that Garcia has failed to demonstrate the state habeas court's conclusion that he was competent and therefore not entitled to a competency hearing was "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
GROUNDS TWO AN THREE: Improper prosecutorial argument
Garcia complains that the following statements made by the prosecution during the guilt/innocence stage of trial rendered it constitutionally unfair
"If this case is not good enough, is not good enough to convict somebody on. then there's not a case out there that is."
"And to Government, we keep hearing about the Government, the Government, the big old Government. Well, I represent the State of Texas, I work for the twelve of you"
He also complains about the following remarks made during the prosecution's closing argument a: the punishment stage:
"The first point I want, and make sure everyone is clear about this case, it is not what's best for Sammy Garcia that you're here to determine. It is what is best for society for the citizens of Tom Green County."
"It looks like a duck, it walks like a duck, it is a duck, ladies and gentlemen. Don't gamble. Don't make our job harder. Don't gamble with the fixture of Tom Green."
"A role model for children? Is this a role model for children? I think not, ladies and gentlemen. That's the problem we face, in our society is that there are too many parents out there like Sammy Garcia."
"What else do we know about Sammy? That in seven years, in seven years he committed three felony offenses. That's what we know about Sammy. And if you let him go back out in the street in twenty-five years, maybe, because remember in the back of your mind."
The state habeas court concluded that Garcia had set out the permissible categories of jury argument in his state application but failed to demonstrate that the prosecutor's remarks fell outside the permissible parameters. See Shannon v. Texas, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996) ("To constitute proper jury argument, the argument must encompass one of the following: 1) summation of the evidence presented at trial, 2) reasonable deduction(s) from that evidence; 3) answer(s) to the opposing counsel's argument, or 4) a plea for law enforcement").
"When a claim regarding the impropriety of the prosecution's argument is framed as a violation of due process, the appropriate inquiry is not whether the remarks were undesirable or even universally condemned but, rather, whether the prosecution's comments so infected the trial with unfairness that there is a reasonable probability that the result would have been different if the proceeding had been conducted properly." Jackson v. Johnson, 194 F.3d 641, 653 (5th Cir. 1999). See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and citations omitted) ("[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process"). To establish that the prosecutor's argument was so inflammatory that it prejudiced his constitutional right to a fair trial, Garcia must demonstrate "either persistent and pronounced misconduct or that the evidence was so insubstantial that absent the remarks, a conviction would probably not have occurred." Byrne v. Butler, 845 F.2d 501, 508 (5th Cir. 1998). His conclusory arguments wholly fail to demonstrate that but for the remarks, he probably would not have been convicted or his sentence would probably not have been as severe. Moreover, he has failed to rebut the state court finding that the arguments were within the parameters allowed by state law.
Accordingly, the Court finds that Garcia has failed to demonstrate that the state court's decision was either contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1).
GROUND FOUR: New evidence of innocence.
Garcia alleges that he has discovered "new" evidence which demonstrates that he is factually innocent of the offense of possession of methamphetamine. This new evidence consists of an affidavit from a initial witness stating that it would have been physically impossible for Garcia to throw drugs out of the bathroom in the motel and photographs from the inside of the motel room where Garcia was arrested.
When Garcia raised this claim in his state habeas application, the state court found that the photographs of the motel room proffered by Garcia as "newly discovered evidence" did not constitute "new evidence" because Garcia failed to show how the photographs differed from the sketch of the room that was admitted into evidence at trial. Furthermore, "the subject matter of the photos was in existence and was well known to [Garcia]" at the time of trial. Accordingly, the state habeas court concluded that the proffer of the photographs was "merely an attempt to retry a disputed issue which was resolved against the defendant by the jury in the trial court." These findings are entitled to the presumption of correctness, and Garcia has failed to offer any evidence to rebut this presumption.
Although Garcia also offers the affidavit of a "material witness" as newly discovered evidence, the record shows that the witness was present at the motel when Garcia was arrested on August 29, 1996, and he has failed to demonstrate that he could not have discovered the content of her affidavit prior to trial or that he could not have called her to testify at his trial. Thus, Garcia does not show that this evidence was newly discovered end not available at the time of trial.
Moreover, "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding" Dowthitt v. Johnson, 230 F.3d at 741 (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)) (footnote omitted); Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir. 1998).
Accordingly, Garcia has failed to demonstrate that the state court adjudication was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1).
GROUND FIVE: Jury misconduct
Garcia alleges that the trial court erroneously denied his motion for new trial based on allegations of juror misconduct and the Court of Appeals erroneously denied his appeal based on this issue. Although Garcia raised this issue in his state habeas application, the state habeas court found that the claim was not cognizable on state habeas because it had been raised and rejected on direct appeal. See Ex parte Twyman, 716 S.W.2d 951, 952-53 (Tex.Crim.App. 1986). "When one reasoned state court decision rejects a federal claim. . . . orders upholding that judgment or rejecting the same claim are considered to rest on the same ground as did the reasoned state judgment. Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999). This "look through" doctrine enables a federal habeas court "to ignore — and hence, look through — an unexplained state court denial and evaluate the last reasoned state court decision." Id.
In an unpublished opinion (No. 03-96-003388-CR, filed July 24, 1997), the Third District Court of Appeals held that the two jurors who testified at the hearing on the motion for new trial did not demonstrate the requisite elements under Texas law to establish reversible error. The appellate court specifically made the following findings:
(1) One juror testified that she considered factors other than parole eligibility in reaching her decision to assess a life sentence; the jury discussion dealt with Garcia's eligibility for parole; she read the jury charge which indicated that he would he eligible for parole in 15 years if he recieved a life sentence; and she recalled the foreman's warning not to consider parole in assessing the penalty.
(2) A second juror testified that none of the jurors represented themselves as having knowledge of the law.
(3) Three jurors testified that they did not hear anyone say "if we give this man life, he will be out of prison in 15 years."
(4) Three jurors gave affidavits which stated that all statements regarding parole were confined to Garcia's eligibility for parole.
(5) At the hearing on the motion for new trial, neither juror testifying that the statement "he will be out in 15 years if he received a life sentence" was made could identify who made the statement.
(6) The evidence presented at the hearing was conflicting because one group of jurors stated they relied upon the misstatement of the law to assess the life sentence but another group stated that parole was discussed only in terms of Garcia's eligibility for parole if he received a life sentence. The appellate court concluded that the trial court did not abuse its discretion in overruling the motion for new trial because the evidence was conflicting. See Tollett v. State, 799 S.W.2d 256, 259 (Tex.Crim.App. 1990).
A petitioner seeking federal habeas relief on a claim of jury misconduct must demonstrate both that jury misconduct occurred and that such misconduct "had a substantial and injurious effect or influence in determining the jury's verdict." Pyles v. Johnson, 136 F.3d 986, 992 (5th Cir. 1998) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Determination of whether there was improper juror conduct and its effect on juror impartiality "are questions of historical fact that "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.'" Moody v. Johnson, 139 F.3d 477, 483 (5th Cir. 1998) (quoting Rushen v. Spain, 464 U.S. 114, 120 (1983) (citing Marshal v. Lonberger, 459 U.S. 422, 423 (1983))).
Garcia has offered no convincing evidence to robin the state court findings nor has he demonstrated that any of the alleged misconduct "had a substantial or injurious influence in determining the jury's [sentence]." The Court, therefore, finds that Garcia has failed to demonstrate the state court's adjudication was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1).
GROUND SIX: Credibility of confidential informant
In ground six, Garcia complains that the trial court erred in sustaining the prosecution's objection to defense counsel's attempt to attack or impeach the credibility of a confidential informant Garcia argues that he was entitled to impeach the credibility of this informant because it was his information that led to the arrest of Garcia on August 29, 1996, and hence to his conviction and sentence for possession of a controlled substance on that date.
The state habeas court made the following findings:
(1) The trial court conducted a "full-blown" evidentiary hearing on February 19, 1996.
(2) The arresting officers had two valid arrest warrants for Garcia.
(3) The entry into the motel room was with consent from one of the occupants.
(4) The bag with the controlled substance was not seized as a result of a warrantless search but was seized after Garcia spit it out in plain view of the arresting officers.
"[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial." Id. at Stone v. Powell, 428 U.S. 465, 482 (1976) (footnotes omitted). Furthermore, neither the Due Process Clause of the Fourteenth Amendment nor the Sixth Amendment right of confrontation compels a state to require disclosure of a confidential informant's identity in every preliminary hearing challenging a search or seizure. McCray v. Illinois, 386 U.S. 300, 312-13 (1967).
Garcia has offered no evidence to rebut the state court findings regarding his arrest and the seizure of the controlled substances nor has he demonstrated that the state court adjudication was contrary to or an unreasonable application of clearly established federal law.
GROUND SEVEN: Ineffective assistance of counsel on appeal.
Garcia argues that appellate counsel was constitutionally ineffective because he failed to challenge the prosecutor's improper argument and the denial of his motion to suppress on appeal; he failed to file a motion to correct and amend the record on appeal; and he failed to raise the issue of the confidential informant's credibility on appeal.
"A criminal defendant is constitutionally entitled to the effective assistance of counsel on direct appeal. . . ." Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1998). When a federal habeas petitioner alleges that counsel failed to assert of fully brief claims on appeal, he must show that his attorney's performance was both deficient and prejudicial. Hughes v. Booker, 220 F.3d 346, 349 (5th Cir. 2000). Nothing in the Constitution or the interpretation of the Constitution by the Supreme Court, however, requires appellate counsel to raise every colorable claim urged by a defendant. Jones v. Barnes, 463 U.S. 745, 754 (1983). A petitioner demonstrates prejudice by showing that there is a reasonably probability that his conviction would have been reversed on appeal if appellate counsel had performed adequately. Lombard v. Lynaugh, 868 F.2d 1475, 1481 (5th Cir. 1989).
The state habeas court addressed the merits of each of Garcia's complaints and determined that counsel was not ineffective for failing to raise them on appeal because there was no merit to any of the complaints.
Because Garcia cannot demonstrate that his conviction and sentence would have been reversed if appellate counsel had complained about the prosecution's jury argument, the denial of the motion to suppress, or the failure to provide the identity of the confidential informant, he cannot demonstrate that he was prejudiced by counsel's failure to raise this issues on direct appeal. See Grounds for Review Two, Three, and Six, supra. Appellate counsel does not perform ineffectively when he fails to raise claims on which he could not have prevailed. Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994). See also Ricalday v. Procunier, 736 F.2d 203 (5th Cir. 1984) (holding that if there was no prejudice from trial error, then there could be no prejudice from appellate counsel's failure to raise the error).
As for Garcia's complaint that appellate counsel failed to note the record was incomplete and request a correction, he supports his claim with no facts other than his conclusory allegations. See Theriot v. Whitley, 18 F.3d 311, 315 (5th Cir. 1994) (a habeas petitioner must allege facts that, if true, would entitle him to relief). Conclusory allegations unsupported by any specific facts do not merit a federal court's attention. Ross v. Estelle, 694 F.2d 1008, 1013 (5th Cir. 1983). See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) ("[M]ere conclusory allegations on a critical issue are insufficient to raise a constitutional claim.").
Accordingly, Garcia has failed to demonstrate that the state court's determination was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1).
GROUND EIGHT: Ineffective assistance of counsel at trial.
In his final ground for review, Garcia complains that his trial counsel was constitutionally ineffective because he did not object to or argue against (1) the prosecutor's improper tactics, (2) the improper or broken chain of custody, and (3) the extrancous offense evidence offered at punishment
To establish a claim for ineffective assistance of counsel at trial, Garcia must demonstrate that his counsel's performance was both objectively deficient and prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700 (emphasis added).
To demonstrate "deficient performance," Garcia must show that his attorney's performance was "professionally unreasonable in light of all the circumstances" at the time of the performance. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). The Supreme Court has determined that "[j]udicial scrutiny of counsel's performance must be highly deferential" because
[i]t is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsigln, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the dine. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide rage of reasonable professional assistance; tint is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy.Strickland v. Washington, 466 U.S. at 689 (internal quotations and citations omitted). See Neal v. Puckett, 239 F.3d 683, 687 (5th Cir. 2001) (holding that in considering whether an attorney's performance was objectively reasonable, a court "must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances").
To demonstrate "prejudice," Garcia must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Simply alleging prejudice will not suffice; the petitioner must affirmatively prove prejudice. Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). Thus, the allegation of a mere possibility of a different outcome would not permit a court to find prejudice. Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999).
A state court's findings of fact made in the course of deciding a claim of ineffective assistance of counsel are entitled to a presumption of correctness, but the "ultimate conclusion that counsel did not render ineffective assistance. . . is legal question which must be reviewed de nova. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995); Wheat v. Johnson, 232 F.3d 357, 362 (5th Cir. 2001). The ultimate determination whether counsel was constitutionally effective is therefore a mixed question of law and fact that is reviewed under subsection (d)(1) of § 2254. Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999).
(1) Garcia first argues that his trial counsel failed to object to the admission of evidence seized after the police forced entry into a motel room without a warrant or consent. The state habeas court made the following findings of fact:
a. A "full-blown evidentiary hearing" was held on February 19, 1996, pursuant to trial counsel's Motion to Suppress.
b. The officers who entered the motel room had two valid felony arrest warrants, which carried "the limited authority to enter the residence of the person named in the warrant in order to execute that warrant."
The entry into the motel room on August 29, 1995, was not unlawful and was with consent.
d. The contraband was not the result of a search since the defendant had the plastic bag in his mouth and discarded it in open view of the officers who retrieved it
The state habeas court then applied the Strickland standard and concluded that "[s]ince the entry was legal, and the evidence was in open view, the only duty the defendant's counsel had was to test such legality, which he did." These findings are clearly supported by the record and Garcia has offered no evidence to rebut them.
(2) Garcia next complains that his attorney failed to object to the introduction of the controlled substance seized at his arrest because the chain of custody was not sufficiently established.
The state habeas court specifically found that
When the controlled substance was admitted into evidence (i.e. Stat's Exhibit 4, Vol. VI of SF) it had been properly authenticated as being in the chain of custody, although defense counsel made his objection, which was overruled. I find that defense counsel performed his duty well and properly, even to the point of making objections out of an abundance of precaution where the objections were not in fact valid.
The record supports this determination and clearly shows that defense counsel did object to the admission of the controlled substance based on an insufficient chain of custody and thoroughly cross-examined each of the law enforcement personnel that testified about the chain of custody. Thus, Garcia has failed to demonstrate that his counsel's performance was objectively deficient regarding the admission of the controlled substance and the predicate chain of custody.
(3) Finally, Garcia alleges that his trial counsel failed to object to the admission of extraneous offense evidence during the punishment stage of his trial. He argues that the prosecutor's question regarding possession of firearm directed to a defense witness unduly introduced evidence of an extraneous offense and his counsel failed to object or request a limiting instruction.
The state habeas court determined that
No conviction was ever presented, although it would have been admissible under Article 37.07. Section 3(a), Texas Code of Criminal Procedure. Detailed objection or examination by defense counsel may well have resulted in the charge or conviction being proved up and added to the prior felonies already before the jury. The action of trial defense counsel to gloss over this reference can be ascribed to acceptable trial tactics. . .; [T]he prior felony convictions which were introduced into evidence [were] entirely proper under Article 37.O7, Texas Code of Criminal Procedure, and in fact [were] mandated if. the State alleged in the indictment, enhanced penalty as a habitual offender was being sought.
To establish that he was prejudiced by his counsel's failure to object to the question regarding possession of a weapon the punishment stage, Garcia must demonstrate that but for the failure to object, his sentence would have been significantly less harsh. See United States v. Seyfert, 67 F.3d 544, 548-49 (5th Cir. 1995) (holding that petitioner shows prejudice from counsel's ineffective performance at a noncapital sentencing by establishing that his sentence would have been significantly less harsh but for the deficient performance).
At the beginning of his sentencing, Garcia pleaded trite to two prior felony convictions alleged in the indictment. Garcia has failed to demonstrate that his counsel's failure to object was objectively unreasonable, but even if the failure to object was constitutionally deficient Garcia cannot demonstrate that he was prejudiced by this one question regarding a misdemeanor offense when he had already admitted to prior convictions and sentences for two felony offenses.
For these reasons, the Court finds that Garcia has failed to demonstrate that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined byte Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
CONCLUSION
For the reasons stated above, the Court finds that Garcia's Petition for Writ of Habeas Corpus should be DENTED and dismissed with prejudice.
All relief not expressly granted is denied and any pending motions are denied.
SO ORDERED.