Opinion
CIVIL ACTION NO. 5:02-CV-105-C
October 3, 2003
ORDER
Petitioner, Virtis Gibson (Gibson), filed a Petition for Writ of Habeas Corpus by a Person in State Custody. Respondent filed an Answer, together with relevant state court records, and Gibson filed a response.
Respondent has lawful custody of Gibson pursuant to a judgment and sentence of the 106th Judicial District Court of Dawson County, Texas. Gibson was charged with the felony offense of possession of a controlled substance (cocaine) enhanced with prior felony convictions. Gibson pleaded not guilty to the charge and true to the enhancement allegations. He was found guilty by a jury on April 20, 1999, of possession of a controlled substance. The jury also found the enhancement allegations to be true. Gibson was sentenced to 75 years' incarceration.
Gibson appealed his conviction and the Eleventh Court of Appeals affirmed the conviction on June 15, 2000, in an unwritten opinion. Gibson filed a petition for discretionary review, which was refused by the Texas Court of Criminal Appeals on September 13, 2000.
Gibson filed one state habeas application challenging his conviction. The Texas Court of Criminal Appeals denied the state habeas application without written opinion on April 17, 2002.
Gibson alleges that the trial court erred because it did not determine whether the testimony of the State's expert witness was scientifically reliable under Texas Rules of Evidence 702 and 104. He also alleges that his trial counsel was ineffective because he failed to
(a) object to the State qualifying its expert witness in the presence of the jury;
(b) object to the trial court's acceptance of the State's expert witness without a 702 hearing;
(c) seek discovery of the physical evidence;
(d) obtain an independent expert witness;
(e) investigate, prepare for, and present an adequate case; and
(f) object to the police officer's mention of crack cocaine.
The Eleventh Court of Appeals summarized the underlying facts of Gibson's conviction as follows:
On May 20, 1998, officer Rene L. Flores of the City of Lamesa Police Department went to appellant's house to attempt to buy a controlled substance from appellant. Officer Flores was searching for appellant based on information provided by a confidential informant. Although Officer Flores did not locate appellant at his house, Officer Flores did find appellant at another location. When Officer Flores found appellant, they agreed that Officer Flores would meet appellant at his house. At appellant's house, Officer Flores purchased 5 rocks of crack cocaine for $100. Two days later, on May 22, 1998, the Lamesa Police Department SWAT Team, with the help of some deputies from the Dawson County Sheriffs Office, executed a search warrant at appellant's residence. During the search of the residence, Officer Flores discovered both crack cocaine and marihuana. Appellant was arrested and subsequently, tried and convicted for possession of cocaine.
Gibson's petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). The AEDPA enacted the present 28 U.S.C. § 2254(d), which provides that 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 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 proceedings.
Thus, § 2254(d) applies only to claims "adjudicated on the merits" in the state courts. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000). "The term `adjudication on the merits,' . . . refers solely to whether the state court reached a conclusion as to the substantive matter of a claim, as opposed to disposing of the matter for procedural reasons." Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2000), reh'g denied Apr. 12, 2002.
For cases found to have been adjudicated on the merits in state court, the Supreme Court has determined that a federal court may grant a writ under the § 2254(d)(1) "contrary to" clause, only "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). "Under the `unreasonable application' clause [of § 2254(d)(1)], 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 prisoner's case." Id. "Distinguishing between an unreasonable and 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).
Pure questions of law and mixed questions of law and fact should be reviewed under § 2254(d)(1), while pure questions of fact should be reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
The "denial" of habeas relief by the Texas Court of Criminal Appeals serves, under Texas law, to dispose of the merits of the state habeas claim. Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). See Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (holding that "denial" signifies the court addressed and rejected the merits of a claim, while "dismissal" means the court declined to consider the claim for reasons unrelated to the merits). If faced "with a silent or ambiguous state habeas decision, the federal court should `look through' to the last clear state decision on the matter" to determine whether the state court decision was procedural or substantive. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).
"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 reviewing a state prisoner's habeas petition, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998).
"The presumption of correctness . . . now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those findings of fact are presumed to be correct." Valdez v. Cockrell, 274 F.3d at 949.
Gibson's claim that the trial court erred by not determining the reliability of the testimony of the State's expert witness is without merit. State evidentiary rulings, even if erroneous, are matters for federal habeas corpus review only if they are of such magnitude as to constitute a denial of fundamental fairness under the Due Process Clause. Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir. 1986). Federal courts will defer to a state court's interpretation of state laws. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).
The Supreme Court, in Strickland v. Washington, 466 U.S. 668, 687 (1984), established a two-prong standard for ineffective-assistance-of-counsel claims. First, Gibson must demonstrate that his counsel's performance was deficient and, second, that the deficient performance prejudiced the defense. To show that the performance was deficient, Gibson must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. To show prejudice, Gibson must show that his counsel's "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Deficient performance will be found to be prejudicial only upon a showing that, but for counsel' s errors, there is a reasonable probability that the final result would have been different and that confidence in the reliability of the verdict is undermined. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Armstead v. Scott, 37 F.3d 202, 206-07 (5th Cir. 1994).
The allegation of a mere possibility of a different outcome will not permit a court to find prejudice. Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999). Gibson must affirmatively prove prejudice; simply alleging prejudice will not suffice. Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994).
A defendant must show "actual prejudice" as a result of his counsel's deficient performance. Moody v. Johnson, 139 F.3d at 482. Gibson is required to show "that the attorney's errors were so deficient as to render the verdict fundamentally unfair or unreliable." Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997). This "performance inquiry" is to be made applying a reasonableness standard; i.e., was counsel's assistance reasonable under all the circumstances, making the assessment, not in hindsight, but evaluating the conduct from counsel's perspective at the time of the conduct. Thus, the reviewing court is to be highly deferential in scrutinizing counsel's performance. Strickland, 466 U.S. at 688-89; Clark v. Johnson, 227 F.3d 273, 282 (5th Cir. 2000).
"The failure to prove either deficient performance or actual prejudice forecloses an ineffective assistance claim." Green v. Johnson, 160 F.3d 1029 (5th Cir. 1998). See Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997) (stating that the presence or absence of prejudice at either trial or appellate level hinges upon the fairness of the trial and the reliability of the verdict). It is not necessary, however, for a district court to address both requirements of the conjunctive Strickland standard when addressing an ineffective-assistance claim; such a claim may be disposed of solely on a petitioner's failure to meet either requirement. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).
A petitioner must affirmatively prove and not merely allege prejudice. Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995); Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). See Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (stating that the Fifth Circuit requires an appreciable showing of prejudice).
"A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Garland v. Maggio, 777 F.2d 199, 206 (5th Cir. 1983); Moore v. Johnson, 194 F.3d 586, 591-92 (5th Cir. 2000) (court must indulge a strong presumption that defense counsel's "strategic or tactical decisions, made after an adequate investigation, fall within the wide range of objectively reasonable professional assistance").
Conclusory allegations unsupported by any specific facts do not merit a federal court's attention. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) ("mere conclusory allegations on a critical issue are insufficient to raise a constitutional claim"); Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (finding "speculation" of ineffective assistance to be no basis for habeas relief).
Gibson's claims that this attorney was ineffective because he failed to object to the State qualifying its expert witness in the presence of the jury and to the trial court's acceptance of the State's expert witness without a 702 hearing is without merit. Under Texas Rule of Evidence 705(b), a Rule 702 hearing was not required because an expert may be required to undergo a voir dire examination directed to the underlying facts or data upon which the opinion is based. The expert witness in Gibson's trial was a Department of Public Safety chemist.
Gibson's claim that his attorney was ineffective because he failed to seek discovery of the physical evidence is also without merit. His attorney filed a motion for discovery specifically requesting "any and all physical evidence" and the motion was granted by the trial court. Further, this claim is conclusory and Gibson has not shown what he wanted his attorney to discover.
Gibson also alleges that his attorney was ineffective because he did not obtain an independent expert witness. The state is not required to furnish a criminal defendant with a non-psychiatric expert upon demand. Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993); Scott v. Louisiana, 934 F.3d 631, 633 (5th Cir. 1991) (non-psychiatric experts to be provided only if the evidence is both critical and subject to varying expert opinion). Further, Gibson has failed to show a reasonable probability that an independent expert witness would have been of assistance to the defense and that denial of such expert assistance resulted in a fundamentally unfair trial. Yohey, 985 F.2d at 227.
"Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978); Boyd v. Estelle, 661 F.2d 288, 390 (5th Cir. 1981). "[H]ypothetical or theoretical testimony will not justify the issuance of a writ . . ." Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986) [internal quotations and citations omitted]. "In order for the appellant to demonstrate the requisite Stickland prejudice, the appellant must show not only that this testimony [of an uncalled witness] would have been favorable, but also that the witness would have testified at trial." Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
In order to establish that counsel was rendered ineffective by virtue of a failure to investigate, a convicted defendant must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed and how it would have altered the outcome of the case; United States v. Glinsey, 209 F.3d 386, 393 (5th Cir. 2000) ( citing United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)).
Moreover, even if any investigation would have turned up admissible evidence, that fact is in itself insufficient to show prejudice. Gray v. Lucas, 677 F.2d 1086, 1092 (5th Cir. 1982). As a result, Gibson's broad-based claims of failure to investigate do not entitle him to habeas relief.
Gibson also claims that his attorney failed to object to the police officer's mention of crack cocaine. This claim is conclusory and without merit.
This Court has examined Gibson's pleadings and finds that he has wholly failed to support his claim of ineffective assistance of counsel with proof of prejudice. See Gochicoa v. Johnson, 238 F.3d 278, 285 (5th Cir. 2000) (quoting Goodwin v. Johnson, 132 F.3d 162, 176 n. 10 (5th Cir. 1997)) ("When the defendant receives at least some meaningful assistance, he must prove prejudice in order to obtain relief for ineffective assistance of counsel.").
The Court has reviewed the entire state court records, Gibson' s petition, the Respondent's answer, and Gibson's response. For the reasons stated above and the facts and law set forth in Respondent's answer, the Court finds that Gibson's petition for writ of habeas corpus should be denied and this case dismissed with prejudice.
SO ORDERED.