Opinion
No. 5:01-CV-083-C
June 25, 2002
ORDER
Petitioner, Alberto Gomez (Gomez) filed a Petition for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Respondent filed an Answer, together with relevant state court records. Gomez did not file a response.
Respondent has lawful custody of Gomez pursuant to a judgment and sentence of the 237th District Court of Lubbock County, Texas. Gomez pleaded not guilty to the felony offense of aggravated sexual assault. He was tried and found guilty by a jury. The jury assessed punishment on April 21, 1995, of 40 years' imprisonment.
Gomez appealed his conviction and the Seventh Court of Appeals of Texas affirmed the conviction on June 12, 1996. On December 12, 1998, the Texas Court of Criminal Appeals granted the filing of an out-of-time petition for discretionary review. After Gomez filed his petition for discretionary review, it was refused by the Texas Court of Criminal Appeals on May 26, 1999.
Gomez filed one state application for writ of habeas corpus which was denied by the Texas Court of Criminal Appeals on February 14, 2001, without written order on the findings of the trial court without a hearing.
GOMEZ'S ALLEGATIONS
Gomez alleges that:
(1) The trial court erred in denying a jury instruction on mistake of fact.
(2) The trial court erred in overruling applicant's objection to the admission of an extraneous offense during the punishment phase of the trial.
(3) He was denied effective assistance of counsel during the trial due to counsel's failure to object to prosecutorial misconduct.
(4) He was denied effective assistance of counsel because counsel failed to object to an unconstitutional jury instruction regarding the effect of good time on a prison term.
STANDARD OF REVIEW
Gomez'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. 2001), reh'g en banc 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.
The Court has reviewed the state court records and finds that the record is clearly adequate to dispose of Gomez's claims without the necessity for an evidentiary hearing.
DISCUSSION
Gomez first argues that the trial court erred when it refused to submit a jury instruction on "mistake of fact." Gomez was convicted of aggravated sexual assault of a child younger than 14 years of age. The evidence revealed that the complainant was 13 years old when the offense was committed. Gomez claimed that he did not know that the complainant was under the age of 14 years and that the jury should have been instructed as to the defense of "mistake of fact." He raised this issue on direct appeal and the appellate court found that a "mistake of fact" is not a defense to aggravated sexual assault. Gomez even acknowledged on direct appeal that Texas courts had held that it was not a defense.
It is not the function of a federal habeas court "to review a state's interpretation of its own law" and a federal habeas court will "defer to the state courts' interpretation." Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). Under Texas law, Gomez was not entitled to an instruction on "mistake of fact"; therefore, his claim must fail.
Next Gomez argues that the trial court erred when it overruled his objections to the admission of an extraneous offense during the punishment phase of trial. Specifically, Gomez challenges the state's introduction of evidence from his step-daughter and others regarding his step-daughter's allegation that Gomez had molested her. This claim was raised on direct appeal and in his petition for discretionary review. The court of appeals found that the trial court erred in admitting the evidence of the extraneous offense because the state did not give the proper statutory notice. However, the appellate court further found the error to be harmless because Gomez waived objection to the admission of state's exhibits 10 and 12, which were medical records and a transcription of a tape recorded conversation between the step-daughter and a children's protective services caseworker regarding the alleged molestation. The appellate court also found that the exhibits "were essentially the same and actually gave more details about the molestation than did C.T. and the outcry witnesses in their live testimony."
The state also introduced evidence of other extraneous offenses, including a burglary of a habitation and false imprisonment. Also, evidence of other bad acts was introduced involving Gomez's drug use and abuse of a former girlfriend.
Gomez also raised the same claim involving the admission of the extraneous offense in his state habeas proceeding. The Texas Court of Criminal Appeals denied his state habeas without written order on the findings of the trial court. These were adjudications on the merits.
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); Givens v. Cockrell, 265 F.3d 306, 308 (5th Cir. 2001) ("We grant habeas relief only when `the violation of the state's evidentiary rules results in a denial of fundamental fairness.'") (quoting Herrera v. Collins, 904 F.2d 944, 949 (5th Cir. 1990)). The erroneous admission of prejudicial evidence justifies federal habeas relief only when it is material in the sense of a crucial, critical, highly significant factor. Mullen v. Blackburn, 808 F.2d 1143, 1145 (5th Cir. 1987). To warrant relief, the erroneously admitted evidence must do more than merely affect the verdict; it must render the trial as a whole unfair. Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir. 1981).
"If evidence of an extraneous offense is wrongfully admitted, however, habeas corpus relief is proper only if the error is of such magnitude that it resulted in `fundamental unfairness.'" Hafdahl v. Johnson, 251 F.3d 528, 536 (5th Cir.) (quoting Blankenship v. Estelle, 545 F.2d 510, 516-17 (5th Cir. 1977)), cert. denied, 122 S.Ct. 629 (2001).
Gomez has failed to show that any error was of "such magnitude that it resulted in fundamental unfairness." Id.
Gomez's last two claims allege that he was denied effective assistance of counsel because his attorney failed to object to prosecutorial misconduct and failed to object to a jury instruction regarding the effect of good time credits on a prison term.
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, Gomez 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, Gomez 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, Gomez 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).
A defendant must show "actual prejudice" as a result of his counsel's deficient performance. Moody v. Johnson, 139 F.3d 477, 482 (5th Cir. 1998). Gomez 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.
"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), cert. denied, 525 U.S. 1174 (1999). 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).
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).
Gomez alleges that his attorney was ineffective because his attorney failed to object to the prosecutor's statement during closing argument on punishment that the case involved "the lives of two little girls." Gomez was accused and found guilty of aggravated sexual assault of a child younger than age 14. During the punishment phase of trial, after a hearing outside the presence of the jury, the state was allowed to introduce evidence that Gomez had molested his step-daughter.
In reviewing the effect of improper jury argument by a prosecutor, the asserted error must be of a constitutional magnitude and the prosecutor's remarks must be so prejudicial that they render the trial fundamentally unfair. Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986). The trial is rendered fundamentally unfair only if, in the context of the entire trial, the remarks were crucial, critical, and highly significant factors. Ortega v. McCotter, 808 F.2d 406, 411 (5th Cir. 1987).
"A criminal defendant bears a substantial burden when attempting to demonstrate that improper prosecutorial comments constitute reversible error." United States v. Bankston, 182 F.3d 296, 313 (5th Cir. 1999). "A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone." United States v. Young, 470 U.S. 1, 11 (1985); United States v. Lowenberg, 853 F.2d 295, 302 (5th Cir. 1988).
"Improper comments by a prosecutor may constitute reversible error where the defendant's right to a fair trial is substantially affected." United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990) (citing United States v. Lowenberg, 853 F.2d 295, 301 (5th Cir. 1988)).
To evaluate whether a defendant's right to a fair trial has been substantially affected by prosecutorial comments, "three factors are considered: the magnitude of the prejudicial effect of the remarks, the efficacy of any cautionary instruction, and the strength of the evidence of the defendant's guilt." Bankston, 182 F.3d at 313; United States v. Casel, 995 F.2d 1299, 1308 (5th Cir. 1993).
During closing arguments at punishment, the prosecutor merely summarized what he believed the punishment evidence had shown. Gomez has failed to show that his right to a fair trial was substantially affected by the prosecutor's comments; thus, his claim must fail.
Gomez's last claim is that his attorney was ineffective because he failed to object to a jury instruction regarding the effect of good-time credits on his potential sentence. He does not allege or prove why the instruction was objectionable. Further, he fails to allege or prove that, but for his attorney's failure to object, his punishment would have been significantly less harsh. The jury was instructed that Gomez "may earn time off the period of incarceration imposed through the award of good conduct time." This instruction tracks the instruction required under state law. See Tex. Code Crim. Proc. Ann. art. 37.07 § 4 (Vernon Supp. 1993). The trial court also instructed the jury that it "cannot accurately be predicted how the . . . good conduct time might be applied to this defendant."
Gomez's claim regarding the "good-time" instruction is conclusory and without merit.
Gomez has failed to demonstrate that the state courts' adjudications of his claims were contrary to, or involved an unreasonable application of, clearly established Federal law . . . 28 U.S.C. § 2254 (d)(1).
CONCLUSION
Based upon the foregoing and the facts and law set forth in Respondent's answer, the Court finds that Gomez's petition for a writ of habeas corpus should be denied and this case dismissed with prejudice.
Any pending motions are denied.