Opinion
No. 3:00-CV-0286-P
April 11, 2003
ORDER
On August 8, 2002, the Court re-referred the above-styled habeas corpus petition to the Magistrate Judge. The Court hereby VACATES that order of re-referral.
IT IS SO ORDERED.
ORDER
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Respondent Janie Cockrell is Director of the TDCJ-ID. For the foregoing reasons, the petition for writ of habeas corpus is denied.
I. PROCEDURAL BACKGROUND
On April 18, 1996, a jury found Petitioner guilty of possession of more than five pounds, but less than fifty pounds, of marijuana in the 382nd District Court of Rockwall County, Texas. During the punishment phase of the trial, the state presented evidence of Petitioner's two prior felony convictions. The jury found both enhancement paragraphs true and assessed punishment at life imprisonment.
On July 20, 1998, the Texas Fifth District Court of Appeals affirmed Petitioner's conviction. ( Gooden v. State, No. 05-96-00786-CR). Petitioner did not file a petition for discretionary review. On May 21, 1999, Petitioner filed a state petition for writ of habeas corpus. ( Ex parte Gooden, Application No. 42, 816-01). On December 15, 1999, the Texas Court of Criminal Appeals denied the petition without written order. ( Id. at cover).
On February 8, 2000, Petitioner filed this federal petition for habeas corpus. Petitioner argues:
(1) the prosecutor withheld exculpatory evidence;
(2) the court abused its discretion in excluding the testimony of defense witnesses after a violation of the rule of sequestration;
(3) the trial court erred in denying the defense a motion for continuance;
(4) his conviction was unlawful because the prosecutor called him a drug runner;
(5) the evidence was factually insufficient to support the jury's finding of guilt;
(6) the court erred in denying the defense's motion for a mistrial after the prosecutor made improper arguments in closing;
(7) one of the jurors failed to tell the court he was convicted of possession of marijuana;
(8) he did not receive a Denno hearing; and
(9) he received ineffective assistance of counsel because:
(a) his attorney failed to notify him of his right to file a pro se petition for discretionary review;
(b) his attorney failed to prevent a violation of the sequestration rule;
(c) his attorney failed to obtain a continuance of the trial;
(d) his attorney failed to timely file a motion to suppress;
(e) his attorney failed to inform the court that he represented one of the jurors in a marijuana case.
On April 25, 2002, the Magistrate Judge found the state trial court erred in excluding Petitioner's witnesses and the Magistrate Judge recommended that the petition for habeas corpus be granted. On August 8, 2002, this Court found that the state trial court did not err in excluding Petitioner's witnesses. This Court denied the petition for writ of habeas corpus as to that claim. The Court now finds Petitioners remaining claims are without merit and are denied.
II. STANDARD OF REVIEW
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted 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 a State court proceeding.28 U.S.C. § 2254(d) (West 1997).
The Court must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" language, a writ may issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Factual findings are presumed to be correct, see 28 U.S.C. § 2254(e)(1), and the Court will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
This amendment applies to all federal habeas corpus petitions which were filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997). The habeas corpus petition in this case was filed February 10, 2000. Accordingly, the petition is subject to review under the AEDPA's amendments.
III. FACTUAL BACKGROUND
Petitioner was convicted by a jury of possession of more than five pounds, but less than fifty pounds, of marijuana. At trial, Officer Spears testified that he initiated a stop of Petitioner's car because Petitioner made improper lane changes and was speeding. (Tr. Vol. 3: 77:15-20). Once Officer Spears stopped Petitioner, he determined that Petitioner appeared nervous and that the car smelled of marijuana. (Tr. Vol. 3: 80:9; 91: 6-10). Petitioner admitted to Officer Spears that he had outstanding traffic warrants. (Tr. Vol. 3: 86:12-24). Officer Spears testified that Petitioner stated his girlfriend, Verita Eschor, leased the car and gave him permission to drive it. (Vol. 3:81: 22-25). Officer Spears asked Petitioner for permission to search the car, and Petitioner refused. (Vol. 3: 84:4-9). Officer Spears then called a canine unit to the scene. (Vol. 3:84:11-13).
While Officer Spears was talking with Petitioner, Officer Tigert interviewed Petitioner's passenger, Johnny Wilson, who was Petitioner's sixteen-year-old son.
Officer Hawkes then arrived at the scene with his police dog. (Vol. 3: 84:11-23). Officer Hawkes testified that his dog jumped inside the vehicle and alerted him that she detected drugs. (Vol. 3:189: 12-24). Officer Hawkes also testified that he smelled marijuana in the car. (Vol. 3: 189:25-190:1-16). Once the dog alerted the officers of the drugs, the officers conducted a search of Petitioner's car. (Vol. 3:192:15-193:1). No drugs were found in the interior of the car, but a box of marijuana was found in the car's trunk. (Vol. 3:116: 6-117:5; 191:1-11).
Officer Spears also testified that Petitioner had a notebook ledger with him when he was arrested. (Vol. 3:130:10-19). Both Officer Spears and Officer Tigert testified that the ledger appeared to be a record of drug transactions. (Vol. 3:130:10-132:13; 293:4-296: 7).
At the close of the prosecution's case, defense counsel indicated he intended to call two witnesses: Petitioner's girlfriend, Verita Eschor, who rented the car in which the drugs were found; and Petitioner's son, Johnny Wilson, who was in the car when police stopped Petitioner and arrested him. (Vol. 4:23:1-5). The prosecutor objected, arguing that the state had invoked the rule of sequestration of witnesses, and that Petitioner's witnesses had been in the courtroom during trial. (Vol. 4:23:9-22). It is undisputed that Johnny Wilson was present through the entire trial, and Verita Eschor was present during the testimony of Officer Tigert. (Vol. 4:23: 17-22; 26:22-27:3). Defense counsel, however, stated that he did not hear the prosecution invoke the rule. (Vol. 4:27-4-8). Once the trial court confirmed that the rule had been invoked, defense counsel asked the court to apply equity to allow the defense witnesses to testify. In the alternative, defense counsel argued that Eschor should be allowed to testify because she was not a fact witness to the arrest, therefore her presence during Officer Tigert's testimony would have no effect on her testimony. (Vol. 4: 26:15-27:8).
The court allowed Eschor to testify outside the presence of the jury. (Vol. 4:28:24-30:25). Eschor stated she would testify that she leased the car Petitioner was driving when he was arrested and that she gave Petitioner permission to drive the car. (Vol. 4:30-1-12). Eschor also testified that earlier on the same day that Petitioner was arrested, there were other people who had her permission to drive the car. (Vol. 4: 30:18-22). Eschor also stated she would testify that the notebook ledger belonged to her and Petitioner, and that the ledger was used by them to log beer and liquor purchases for a club business they owned. (Vol. 4: 35:9-36:6). She testified that other writing in the ledger was random writing including an address of her new apartment, the frequency number of a radio station, and the address of a rental house she and Petitioner owned. (Vol. 4:42:7-47:13). She also testified that she did not make all the entries in the ledger book, that she witnessed Petitioner make some of the entries, and that she did not have personal knowledge of all the entries in the book. ( Id.).
After hearing this testimony, the trial court found the rule had been violated and the court excluded the testimony of Petitioner's two witnesses. (Vol. 4:15-25). Petitioner did not testify. (Vol. 4: 52: 22-25). The jury found Petitioner guilty and assessed punishment at life imprisonment. (Vol. 5:73:6-8).
On direct appeal, the Texas Fifth District Court of Appeals found that Eschor's excluded testimony "was not crucial to Gooden's defense." ( Gooden v. State of Texas, No. 05-96-00786-CR, Slip. Op. at 4). The court stated that "Gooden had already testified that his girlfriend leased the car and allowed him to drive it." ( Id.). The Fifth District also found that because Eschor did not have personal knowledge of all the writings and figures in the notebook ledger, she could not have established the ledger was not used to record narcotics transactions. ( Id. at 4-5). Finally, the court found that because Petitioner failed to make a bill of exception regarding Johnny Wilson's testimony, the court was unable to say the son's testimony was crucial to Petitioner's defense. ( Id. at 4). The court therefore overruled Petitioner's claims and affirmed his conviction.
Although the court found that Petitioner had already testified to the fact that his girlfriend leased the car, this finding is in error. Petitioner did not testify.
Petitioner filed a state application for habeas relief. On state habeas review, Petitioner submitted an affidavit from Johnny Wilson. Wilson's affidavit stated he would have testified that he and Petitioner picked up the rental car from Verita Eschor's father's business parking lot. ( In re Gooden, Application No. 42, 816-01, p. 51). Wilson stated that neither he nor Petitioner looked in the trunk before driving away in the car. ( Id.). Wilson stated there was no marijuana smell in the car, and no smell that would have alerted him to believe that marijuana might be present. ( Id.). Wilson stated the officers never questioned him regarding any smell of marijuana and he never heard the officers mention a smell of marijuana. ( Id. at 52-53). The Texas Court of Criminal Appeals denied the habeas application without written order. ( In re Gooden, Application No. 42, 814-01, at cover).
IV. DISCUSSION
1. Factual Insufficiency
Petitioner argues the evidence was factually insufficient to sustain the conviction. The doctrine of "factual insufficiency," however, is a doctrine of Texas state law under which an appellate court examines the fact-finder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). The Fifth Circuit has made clear that in reviewing the sufficiency of the evidence to support a criminal conviction, a federal habeas court should apply the standard in Jackson v. Virginia, 443 U.S. 307 (1979), even if the state would require a higher standard of proof. Pemberton v. Collins, 991 F.2d 1218, 1224 (5th Cir. 1993).
The United States Supreme Court has articulated the standard for assessing the sufficiency of the evidence to support a conviction. The evidence is sufficient if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Accordingly, federal habeas corpus relief may be granted only if the state court's analysis of Petitioner's sufficiency of the evidence claims are clearly contrary to or involved an unreasonable application of Jackson, even if state law would require a higher standard of proof. Schrader v. Whitely, 904 F.2d 282, 284 (5th Cir. 1990).
To prove unlawful possession of a controlled substance, the state must prove the accused (1) exercised care, control and management over the contraband, and (2) knew the matter possessed was contraband. Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd); Fields v. State, 932 S.W.2d 97, 103 (Tex.App. — Tyler 1996, pet. ref d). To show possession of marijuana, the state must prove the accused knowingly or intentionally possessed the marijuana. See Tex. Health Safety Code Ann. § 481.121(a) (West 1994). The state need not prove the accused had exclusive possession of the controlled substance in question. See Hughes v. State, 612 S.W.2d 581, 582 (Tex.Crim.App. 1981). Where a defendant is not in exclusive possession of the premises where the contraband is found, however, the state must show additional independent facts which affirmatively link the defendant to the contraband. Id.
The state appellate court noted the following evidence supported the conviction: (1) nineteen pounds of marijuana were located in the trunk of a leased vehicle driven by Petitioner; (2) police witnesses testified that rental vehicles are frequently used to transport drugs to avoid forfeiture of a drug courier's personal vehicle; (3) when stopped, Petitioner was holding a notebook which he said belonged to him. Police officers testified the notebook was a narcotics ledger; (4) Petitioner was unusually nervous during the stop; and (5) police witnesses testified to the presence of a strong, unique odor of marijuana in the interior of the vehicle. As the driver of the vehicle, Petitioner should have smelled the odor.
A review of the record shows the evidence is sufficient to support the conviction. Officer Spears testified that when he stopped Petitioner's car, Petitioner appeared nervous and the car smelled of marijuana. (Vol. 3: 80:9; 91:6-10). Officer Spears determined that the car Petitioner was driving was a leased car. (Vol. 3: 80:21; 81:21). Officer Hawkes testified that he arrived at the scene with a police dog and the dog alerted to the presence of marijuana. (Vol. 3:84:11-23). Officer Hawkes testified that he smelled marijuana in the car. (Vol. 3:189:25-190:1-16). Officer Hawkes testified that a box of marijuana was found in the trunk of the car. (Vol. 3:116:6-177:5). Officer Spears testified that Petitioner had a notebook ledger with him when he was arrested. (Vol. 3:130:10-19). Both Officers Spears and Tigert testified that the ledger appeared to be a record of drug transactions. (Vol. 3:130:10-132:13; 293:4-296:7).
The appellate court did not apply the Jackson standard unreasonably to the facts of Petitioner's case. Accordingly, Petitioner's factual insufficiency claim is without merit and is denied.
2. Exculpatory evidence
Petitioner argues the prosecution withheld exculpatory evidence. Petitioner was driving a rental car when stopped by police. Petitioner argues the prosecution talked to representatives of the rental car company, and the representatives would have testified that Petitioner did not fit the profile of a drug runner. Petitioner's allegations are unsupported by the record and are wholly conclusory. "[A] court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court) unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Petitioner's claim is without merit and is denied.
3. Denno Hearing
Petitioner states that evidence was introduced at trial showing that Petitioner acknowledged ownership of a ledger notebook. The prosecution argued the notebook contained recordings of drug transactions. Petitioner argues that before this evidence could be admitted, he was entitled to a hearing pursuant to the Supreme Court's ruling in Jackson v. Denno, 378 U.S. 368 (1964). Denno holds that before admitting evidence of a confession, the court must ensure that the confession was voluntary. Petitioner's admission that he owned the notebook, however, does not amount to a confession that he possessed the drugs found in the trunk of the car. Petitioner's claim is therefore without merit and is denied.
4. Motion for continuance
Petitioner argues his constitutional rights were violated when the trial court denied his motion for continuance. A motion for continuance is within the sound discretion of the trial court. Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981). On federal habeas review, a petitioner claiming that a state court erred in denying a request for continuance will be entitled to relief only upon a showing that the court abused its discretion and that denial was "so arbitrary and fundamentally unfair that it violate[d] constitutional principles of due process." Id. (citations omitted). If Petitioner shows there was an abuse of discretion, the Petitioner must also show that "there is a reasonable probability that the granting of the continuance would have permitted him to adduce evidence that would have altered the verdict." Schrader v. Whitley, 904 F.2d 282, 288 (5th Cir. 1990) (citations omitted).
In this case, Petitioner filed a motion for continuance on January 5, 1996, three days before trial. The motion was based on the medical condition of Petitioner's lead counsel, Andy Konradi. Mr. Konradi had recently been treated at a hospital emergency room for chest pains. The doctor advised Mr. Konradi to avoid sitting for long periods of time. Petitioner's co-counsel, Mr. Brian Blessing, stated that he was not familiar with the facts of the case, that he had inadequate time to prepare, and that he could not adequately try the case alone. The court denied the motion. Mr. Blessing therefore acted as lead counsel during the trial and Mr. Konradi acted as co-counsel. The trial court also agreed to give Mr. Konradi whatever breaks he needed during the trial.
The appellate court found that Mr. Blessing was hired as co-counsel twenty-six days before the two-day trial. The court found, and the record reflects, that Mr. Konradi actively participated as co-counsel, that he lodged objections, presented final arguments and conferred with witnesses. The court found that Mr. Blessing was familiar with the case and effectively represented Plaintiff as lead counsel. The state court decision denying Petitioner's claims appears consistent with clearly established federal law of the United States Supreme Court. It involves no unreasonable application of clearly established federal law. It also appears to be based on a reasonable determination of the facts. Petitioner's claims are therefore denied.
5. Prosecutorial misconduct
Petitioner argues the prosecutor engaged in misconduct during closing arguments when he: (1) called Petitioner a "drug runner"; (2) allegedly commented on Petitioner's failure to testify; and (3) stated he would have liked to have seen Petitioner call certain witnesses to testify.
(a) Failure to testify
Petitioner identifies the following excerpts from the prosecutor's closing arguments as improper.
Mr. Blessing made one comment — there's several comments I want to address, but one in particular. And that's in regard to you folks have to determine the credibility in this case. And one type of credibility that he didn't mention that I would like you to consider is the credibility of the defense that these good lawyers over here have put forward. Do you know what you didn't hear? Let me tell you, before we talked about what we did hear.
(Vol. 4: 82:18-83:1).
Petitioner's argues these statements were comments on his failure to testify. The Fifth District Court of Appeals considered the alleged prosecutorial misconduct. The court disagreed with Petitioner's argument that these comments were addressed to his failure to testify. The court stated:
The trial court sustained defense counsel's objection, instructed the jury to disregard the argument, but denied the motion for mistrial. As the prosecutor pointed out later in his argument, he was referring to defense counsel's opening statement. In his opening statement, defense counsel said he would show the jury that the officers of the Northeast Area Drug Interdiction Task Force were racist and targeted minorities, such as the black, male defendant. The trial court did not abuse its discretion in denying the mistrial since the prosecutor's argument was a proper response to defense counsel's opening statement, and did not refer to Gooden's decision not to testify. See Willis v. State, 785 S.W.2d 378, 384 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 908 (1990). Further, any error was harmless, given the instruction to disregard. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996), cert. denied, 117 S.Ct. 1442 (1997); Ransom v. State, 920 S.W.2d 288, 303 (Tex.Crim.App. 1995) (opinion on reh'g), cert. denied, 117 S.Ct. 587 (1996).Gooden v. State of Texas, No. 05-96-00786-CR, Slip Op. at 12-13.
Prosecutorial misconduct implicates due process concerns. Foy v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992). Statements of a prosecutor may violate due process in two ways: `They may abridge a specific right conferred by the Bill of Rights, or [they] may constitute a denial of due process generally, thus constituting a "generic substantive due process' violation." Id. (quoting Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988)). In this case, Petitioner argues both a general violation of due process and a specific violation of his Fifth Amendment right to remain silent.
When alleged prosecutorial misconduct implicates a constitutional right, such as the right to remain silent, courts must determine whether the prosecutor's statement was "was manifestly intended or was of such character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988). If the prosecutorial misconduct is constitutional error under this test, the courts must then determine whether the error is harmless. Id. "A comment regarding a defendant's Fifth Amendment rights must have a clear effect on the jury before reversal is warranted." United States v. Rocha, 916 F.2d 219, 232 (5th Cir. 1990).
In this case, the prosecutor's statements do not appear manifestly intended to be taken by the jury as a comment on the failure of Petitioner to testify. They are not of such character, furthermore, that the jury would naturally and necessarily take them to be a comment on his failure to testify. The prosecutor was instead commenting on defense counsel's opening statements, and was arguing that the defense did not deliver on its promise that evidence would show that officers stopped Petitioner's car because of his race. The prosecutor made no statement about Petitioner's right to remain silent. Petitioner's claim is without merit and is denied.
(b) Other witnesses
Petitioner's second claim of prosecutorial misconduct involves the prosecutor's statements regarding other witnesses. Petitioner identifies the following statements as improper:
And by the way, one other person that we didn't hear from that would be great to hear from — if it wasn't the defendant's marijuana, if it wasn't, where is the person that put it in there? Why didn't he take the stand and say, hey, it was mine, I put it there, he couldn't have known?
You heard testimony that it's his girlfriend's car that she leased. I assume she's not going to be — we can surmise that she's not going to be giving it to rank strangers. Where is his girlfriend? Where is his friend? They could have called him and said, hey, you know, I put the dope in there —
(Vol. 4: 89:5-18).
In considering Petitioner's arguments on direct appeal, the Fifth District court stated:
Gooden also complains about the prosecutor's argument that it would be nice if Gooden's girlfriend had testified, and "why didn't the person who put the marijuana in the trunk testify." The trial court did not abuse its discretion in overruling the objection because this argument was a proper response to defense counsel's argument that the jury should have all the evidence before incarcerating Gooden. Defense counsel argued, "Wouldn't you like to hear from the girlfriend who rented the car?" Defense counsel also argued that only a mere suspicion connected Gooden to the marijuana in the trunk of the rented car, and "wouldn't you like to hear from the [car] rental people." See Willis, 785 S.W.2d at 384. We overrule Gooden's ninth point of error.Gooden v. State of Texas, No. 5-96-00786-CR, Slip Op. at 13.
When a petitioner assarts a generic due process violation, the Court asks whether the prosecutorial comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChistoforo, 416 U.S. 637, 643 (1974)). In the habeas context, the appropriate standard of review for such allegations is "the narrow one of due process, and not the broad exercise of supervisory power." Id. (quoting Donnelly, 416 U.S. at 642).
In federal habeas actions, improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner's state court trial was rendered fundamentally unfair within the meaning of the Fourteenth Amendment's Due Process Clause. To establish that a prosecutor's remarks are so inflammatory as to prejudice the substantial rights of a defendant, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred. Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986) (citations omitted). A trial is fundamentally unfair if there is a reasonable probability that the verdict might have been different had the trial been properly conducted. Fay, 959 F.2d at 1317.
Habeas relief is not warranted for Petitioner's claim that the prosecutor's statements violated his rights to due process in the general sense. The prosecutor's statements regarding Petitioner's failure to call certain witnesses did not render Petitioner's trial fundamentally unfair. Petitioner has shown no persistent misconduct by the prosecutor. He points to only one brief passage from the closing argument. The evidence, furthermore, was not so insubstantial that but for the statements no conviction would have occurred. The nineteen pounds of marijuana was located in the trunk of a leased vehicle driven by Petitioner. (Vol. 3:116:6-117:5; 191:1-11). Police witnesses testified to the odor of marijuana in the interior of the car. (Vol 3:189: 12-24; 80: 9; 91: 6-10). Police officers testified that Petitioner was holding a notebook and that Petitioner stated the notebook belonged to him. (Vol. 3:130:10-19). The officers testified that the notebook was consistent with a narcotics ledger. (Vo. 3:130:10-132:13; 293:4-296:7). The Court finds the comments of the prosecutor during closing arguments are not so inflammatory that, in their absence, Petitioner probably would not have been convicted.
(c) Referring to Petitioner as a "drag runner"
Finally, Petitioner argues the prosecutor engaged in misconduct by referring to him as a drug runner in closing arguments. An assertion of what the prosecutor believes the evidence has shown, however, is not error. Onega v. McCotter, 808 F.2d 406, 410 (5th Cir. 1987).
Further, even assuming prosecutorial misconduct which amounts to constitutional error, such error would be harmless. The statements of the prosecutor did not have a substantial or injurious effect or influence on the jury's verdict. The state court decision denying Petitioner's claims appears consistent with clearly established federal law of the United States Supreme Court. It involves no unreasonable application of clearly established federal law. It also appears to be based on a reasonable determination of the facts. Petitioner's claims are therefore denied.
6. Allegations regarding juror
Petitioner argues that his attorney, Mr. Blessing, admitted to Petitioner that he had represented one of the juror's in a misdemeanor marijuana case. In Petitioner's reply to Respondent's answer, he submits the affidavit of his son, Johnny Wilson, stating that Mr. Blessing also admitted to Mr. Wilson that he represented the juror in a previous case. Petitioner states that this juror was convicted of the charge and was later charged with a felony. The record shows that the juror received deferred adjudication for a misdemeanor marijuana charge on August 24, 1993. The record does not reflect that the juror was convicted of any felony offense at the time of Petitioner's trial. The record therefore shows no basis for disqualifying this juror. See Tex. R. Crim. P. 35.16 (West 1996) (stating a juror can be disqualified if he has been convicted of theft or any felony).
Petitioner argues that the juror found Petitioner guilty, and counseled other jurors to find Petitioner guilty, in the expectation that the juror would be granted leniency in any future criminal charges. (Pet. Reply p. 6). Petitioner's allegations are unsupported by the record and are wholly conclusory. "[A] court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court) unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Petitioner's claim is therefore denied.
7. Ineffective assistance of counsel
To sustain a claim of ineffective assistance of counsel, Petitioner must meet the standards of Strickland v. Washington, 466 U.S. 668 (1984), which requires proof that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial. Id. at 687. In Strickland, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such prejudice, Petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). "[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id. "Rather, the defendant must demonstrate that the prejudice rendered sentencing `fundamentally unfair or unreliable.'" Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
(a) Rule of sequestration
Petitioner claims his counsel rendered ineffective assistance by allowing a violation of the Rule of sequestration. The Court finds Petitioner's claim is precluded by the doctrine of invited error and by Petitioner's failure to establish the required prejudice.
The doctrine of invited error provides that "a defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where, as here, it is not clear that the defendant was prejudiced thereby." United States v. Raymer, 876 F.2d 383, 388 (5th Cir. 1989) (quoting United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975)) (finding invited error where defense counsel first inquired on direct examination about statements defendant made to his psychologist, after which the prosecutor asked two questions on the subject); see also, United States v. Solis, 299 F.3d 420, 423 (5th Cir. 2002) (finding invited error where the defense successfully moved to strike facts alleged in the indictment but argued on appeal that these facts were essential elements to the crime and were required to be proved beyond a reasonable doubt); United States v. Doran, 564 F.2d 1176, 1177 (5th Cir. 1977) (finding invited error where defense counsel first elicited evidence regarding inadmissible plea negotiations).
In this case, it is apparent that Petitioner knew his son was present in the courtroom throughout the trial. In fact, during the testimony of Officers Tigert and Spears, the prosecutor pointed to Petitioner's son and asked the officers whether they recognized him as Petitioner's passenger. (Vol. 3, 83:16-22; Vol 4, 15:13-19). It also appears that Petitioner was present when the prosecution's witnesses were sworn and the witnesses were excluded from the courtroom. (Vol. 3, 34:13-35:10). Further, it is clear that the prosecution, the Court and Petitioner's counsel saw Petitioner's girlfriend in the courtroom during the testimony of Officer Tigert. (Vol. 4, 25:15-18; 26:23-27:3; 32:22-23). Petitioner therefore either knew or should have known that his girlfriend was present during the trial. Petitioner cannot now claim ineffective assistance of counsel based on actions in which Petitioner invited and participated. See Raymer, 876 F.2d at 388.
Further, Petitioner has not shown the required prejudice to establish his ineffective assistance of counsel claim. Petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Petitioner has failed to meet this burden.
Petitioner states his son would have testified there was no smell of marijuana in the car and that Petitioner did not know drugs were in the car's trunk. Petitioner's girlfriend, Verita Eschor, would have testified that the ledger found in Petitioner's possession was used to record alcohol sales for a business. Eschor also would have testified that she leased the car and that she gave other people permission to drive the car. Both Officer Spears and Officer Hawkes testified that Petitioner's car smelled of marijuana. (Vol. 3: 80:9; 80:21; 81:21; 91:6-10). The canine unit alerted to the smell of drugs in the car and officers found a box of marijuana in the car's trunk. (Vol. 3:189:12-24; 116: 6-117:5; 191:1-11). Officers Spears testified that Petitioner informed them that his girlfriend leased the car. (Vol. 3: 80:21; 81:21). Officer Spears and Tigert also both testified the ledger in Petitioner's possession appeared to be a record of drug transactions. (Vol. 3: 130:10-132:13; 293:4-296:7). Further, Eschor, did not have personal knowledge of all the ledger's entries, and could not testify as to all of the ledger's entries. Petitioner has not shown a reasonable probability that but for the exclusion of his son's and Eschor's testimony, the outcome of his trial would have been different. He has therefore failed to show sufficient prejudice regarding his ineffective assistance of counsel claim.
The state court decision denying Petitioner's claims appears consistent with clearly established federal law of the United States Supreme Court. It involves no unreasonable application of clearly established federal law. It also appears to be based on a reasonable determination of the facts. Petitioner's claim is therefore denied.
(b) Petition for discretionary review
Petitioner argues his appellate counsel failed to timely inform him of his right to file a petition for discretionary review. His appellate counsel, however, submitted an affidavit to the Texas Court of Criminal Appeals stating that she timely notified Petitioner of his right to file a petition for discretionary review. She stated that she also sent Petitioner a copy of the Texas Rule of Appellate Procedure concerning petitions for discretionary review and a sample form instructing how to format the petition. ( Ex pane Gooden, Application No. 42, 814-01 supplement at 2-3). The state court found Petitioner's claim of ineffective assistance of counsel was without merit. The state court decision denying Petitioner's claims appears consistent with clearly established federal law of the United States Supreme Court. It involves no unreasonable application of clearly established federal law. It also appears to be based on a reasonable determination of the facts. Petitioner's claims is therefore denied.
(c) Motion for continuance
Petitioner argues his trial counsel was ineffective for failing to obtain a motion for continuance. The record reflects that counsel made two motions for continuance that were denied by the trial court. As discussed above, the court has wide discretion in determining whether to grant a motion for continuance. Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981). Petitioner has failed to show that his counsel was ineffective because the court denied the motion. Petitioner's ineffective assistance claim is therefore denied.
(d) Motion to suppress
Petitioner argues his counsel was ineffective for failing to timely file a motion to suppress before trial and that counsel did not raise the motion during trial. The record shows that on the day of trial the defense counsel filed a motion to suppress evidence based on die type of search that was conducted at the scene. (Vol. 3:7:1-22). The court decided to carry the motion to suppress over to trial. (Vol. 3:8:15-16). During trial, Petitioner's counsel re-urged the motion to suppress prior to Officer Spear's testimony regarding the notebook ledger. (Vol. 3: 88:22-25). Petitioner's claim, therefore, that his counsel failed to argue the motion to suppress is without merit. Petitioner also can show no prejudice for his counsel's failure to file the motion prior to trial. The trial court carried the motion to trial and heard arguments on the motion. Petitioner's ineffective assistance claim is therefore denied. (e) Representation of a juror
As discussed above, Petitioner argues that his attorney Mr. Blessing admitted to him that he had represented one of the juror's in a misdemeanor marijuana case. The record does not reflect that the juror was convicted of any felony offense at the time of Petitioner's trial. The record therefore shows no basis for disqualifying this juror. See Tex. R. Crim. P. 35.16 (West 1996) (stating a juror can be disqualified if he has been convicted of theft or any felony).
Further, Petitioner's alleges that the juror found Petitioner guilty, and counseled other jurors to find Petitioner guilty, in the expectation that the juror would be granted leniency in any future criminal charges. (Pet. Reply p. 6). Petitioner's claims are unsupported by the record and are wholly conclusory. "[A] court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court) unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Petitioner's has not shown that his counsel's performance was deficient and that the deficiency prejudiced his defense. His claim is therefore denied.
V. CONCLUSION
For the foregoing reasons, the petition is DENIED with prejudice for failure to make a substantial showing of the denial of a federal right.
IT IS SO ORDERED.
JUDGMENT
This action came on for consideration by the Court, and the issues having been duly considered and a decision duly rendered,
It is ORDERED, ADJUDGED and DECREED that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied with prejudice for failure to make a substantial showing of the denial of a federal right.
It is further ORDERED that the Clerk shall transmit a true copy of this judgment and the Memorandum Opinion and Order filed in the above-referenced case to all parties.
IT IS SO ORDERED.