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holding that counsel's status letter indicating “NA” as to eligibility for community supervision did not contravene Hooks because “ reasonable reading of this letter is that counsel was informing [the defendant] that community supervision was not part of the [s]tate's plea bargain offer.”
Summary of this case from United States v. Sanchez-SanchezOpinion
No. 3:03-CV-795-B.
January 4, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I. BACKGROUND A. PARTIES
Petitioner Cleveland Green is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
B. FACTUAL AND PROCEDURAL HISTORY
On November 21, 1997, Green was indicted for aggravated assault with a deadly weapon. (C.R. at 2.) The facts of the offense, as stated by the intermediate appellate court, are as follows:
The victim of the assault was Mary Kaposta. She testified that in 1995 she met Green and the two began dating. In 1996, Green and Kaposta began living together in Kaposta's home. The relationship was apparently a rocky one, as Kaposta told the jury that she had become afraid of Green because he had beaten her in the past. On November 21, 1997, the couple were alone in the house when they began to argue. The argument turned physical when Green pushed Kaposta onto a bed and held her immobile by grabbing her hair. The beating continued until Kaposta began to verbalize committing suicide. At that point, Green telephoned Kaposta's sister to tell her of Kaposta's mental state. Kaposta also got on the telephone and told her sister that she, Kaposta, just could not take the beatings anymore. As soon as this telephone conversation was terminated, Kaposta's sister summoned police to the residence.
Upon discovering that the police had arrived, Green armed himself with two knives from the kitchen and barricaded the doors and closed blinds to keep the police out. Green held Kaposta in the bedroom. While holding the knives, Green told Kaposta they were never going to leave the house alive. Green ignored the officers' pleas to let Kaposta go, and at one point forcibly took her to the door and forced her to tell the officers she was alright and that they should go. During this time, Green had at least one of the knives in his pocket or in his hand. Kaposta testified that she was very afraid for her life during this time. She believed, from what Green said and did, that he would have killed her had she tried to escape or call out to the officers.
Officer Ted Zettle was one of the first officers to arrive at the house. Zettle testified that he was able to see into the house well enough to see Green manhandle Kaposta. Although no officer ever saw a knife in Green's hand, Zettle did observe a knife sticking out of Green's pocket during the incident. Zettle and other officers were finally able to forcibly gain entry into the house, where they found Green hiding in an armoire in the bedroom. Kaposta had managed, by this time, to escape through the garage. Other police officers testified to much of the same story, including seeing a knife sticking out of Green's pocket during the assault. When interviewed at the scene, Kaposta told the officers that Green had threatened her with a knife. However, Kaposta bore no physical wounds.
The defense put Monica Jiminez on the stand. Jiminez, a longtime friend of Kaposta's, told the jury that during several conversations, Kaposta told her Green had never threatened her with a knife, and he had gotten the knives for his own protection. There was also testimony that, during the assault, Green telephoned the 911 operator and reported his fear that the police were going to harm him. According to Jiminez, Kaposta had said Green only got the knives from the kitchen after the police arrived and then only to protect himself. Another defense witness, Bethany Culton, testified that Kaposta had also told her the same story, namely that Green only got the knives in self-defense and never threatened Kaposta with them.Green v. State, No. 5-98-1008-CR, slip op. at 2-3 (Tex.App. — Dallas Dec. 27, 1999) (not designated for publication). The jury found Green guilty. (C.R. at 49.) Green then pleaded true to the enhancement paragraph of the indictment, and the jury assessed his punishment at 25 years' confinement. (C.R. at 59-60.)
The Dallas Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Green's petition for discretionary review on March 28, 2001. Green v. State, No. 5-98-1008-CR (Tex.App.-Dallas Dec. 27, 1999 May 3, 2000, pet. ref'd) (orig. op. supp. op. on reh'g) (not designated for publication). On February 7, 2002, Green filed a state application for habeas corpus relief, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Green, No. 39,086-05 (Tex.Crim.App. Jan. 15, 2003) (not designated for publication). On April 11, 2003, Green filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, challenging his conviction. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
Green's first state habeas application, which requested release on bond while his direct appeal was pending, was dismissed by the Court of Criminal Appeals. Ex parte Green, No. 39,086-01 (Tex.Crim.App. Oct. 7, 1998) (not designated for publication). Green's remaining three collateral proceedings were motions for leave to file writs of mandamus, which the Court of Criminal Appeals denied. In re Green, Nos. 39,086-02, -03, -04 (Tex.Crim.App. Sept. 13, 2000, Dec. 19, 2001, Jan. 15, 2003) (not designated for publication).
On April 4, 2002, Green filed a previous federal habeas petition attacking his conviction, which this Court denied without prejudice for failure to exhaust his state-court remedies because his state habeas application was still pending. Green v. Cockrell, No. 3:02-CV-739-D (N.D. Tex. May 29, 2002).
C. EXHAUSTION OF STATE COURT REMEDIES
Dretke believes Green has sufficiently exhausted available state remedies on all issues listed below and, thus, does not move for dismissal on this ground.
Dretke argues that Green has failed to exhaust his claim that the evidence was legally insufficient to support the conviction. (Resp't Answer at 5-6.) However, Green does not specifically raise this ground in his amended federal habeas corpus petition or in the supporting memorandum. Cf. Woods v. Johnson, 75 F.3d 1017, 1035 n. 24 (5th Cir.) (holding claim not properly presented by reference in briefs when not set out as a separate contention or ground of error), cert. denied, 519 U.S. 854 (1996).
D. ISSUES
Green raises five issues:1. He was deprived of counsel when the trial court replaced Joe Shearin based on a conflict of interest. (Pet'r Mem. of Law at 1-6.)
2. He was denied the right to represent himself on appeal. ( Id. at 7-15.)
3. The State knowingly used perjury, which establishes his actual innocence. ( Id. at 118-21.)
4. Trial counsel was constitutionally ineffective. ( Id. at 16-102, 117.)
5. Appellate counsel was constitutionally ineffective. ( Id. at 105-17.)
II. DISCUSSION A. STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
B. SUBSTITUTION OF TRIAL COUNSEL
Green asserts that the trial court's removal of Joe Shearin based on a conflict of interest, without a hearing and 40 days before trial, deprived him of his Sixth Amendment right to counsel. (Pet'r Mem. of Law at 1-6.) Nothing in the record supports Green's assertion that Shearin was replaced because of a conflict of interest. Indeed, Dretke has suggested that, based on his contact with Shearin, Shearin asked to be removed from the case because of conflict with Green. (Resp't Answer at 9 n. 6.) Conclusory allegations, such as this one, are insufficient to support habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (per curiam). Additionally, Green was not entitled to the court-appointed counsel of his choice. Cantu-Tzin v. Johnson, 162 F.3d 295, 300 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999). And, as discussed below, he has not shown that he was prejudiced by the representation provided by replacement counsel, Hamida A. Abdal-Khallaq.
C. DENIAL OF RIGHT TO SELF-REPRESENTATION
Green asserts that he was denied the right to represent himself on appeal. (Pet'r Mem. of Law at 7-15.) There is no constitutional right to self-representation on appeal. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 163 (2000). As such, Green is not entitled to habeas corpus relief. See Lowrey v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993) (holding habeas relief only available for the deprivation of constitutionally protected rights), supplemented on reh'g, 996 F.2d 770 (5th Cir. 1993).
D. PERJURY
Green next argues that the State knowingly used perjured testimony. He points to the fact that when Kaposta attempted to get a protective order against Green after he was arrested, she did not state that Green used knives and told friends and co-workers that he did not threaten her with a knife. Green argues that because Kaposta argued Green threatened her with a knife for the first time at trial, her testimony was perjurious and establishes Green's actual innocence. (Pet'r Mem. of Law at 118-21.) There is no evidence that this testimony was perjurious or that the State knew it was false, which defeats a due-process claim. May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied, 504 U.S. 901 (1992). Contradictory testimony from witnesses, inconsistencies in a witness's testimony, and conflicts between reports, written statements, and the trial testimony of a witness do not, standing alone, establish perjury. Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). The testimony Green relies on to show perjury is merely evidence that contradicts her testimony at trial. (I R.R. at 164-68.) These inconsistencies were explored at trial and their resolution was the duty of the fact-finder. Koch, 907 F.2d at 531.
Further, any claim of actual innocence based on the alleged perjury is meritless. Actual innocence based on new evidence relevant to the guilt of a state prisoner is not cognizable on federal habeas corpus absent an independent constitutional violation occurring in the state trial. Herrera v. Collins, 506 U.S. 390, 400, 404 (1993); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995). Thus, Green's substantive innocence claim fails to state a claim for federal habeas corpus relief. Lucas v. Johnson, 132 F.3d 1069, 1075-76 (5th Cir.), cert. dismissed, 524 U.S. 965 (1998). Additionally, Green's procedural innocence claim fails as well because, as discussed in these findings and conclusions, no independent constitutional violation caused the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 314-16 (1995).
E. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Green's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
1. Trial Counsel at Guilt-Innocence Phase
Green asserts that trial counsel was constitutionally ineffective before and during the guilt-innocence portion of trial when she:
1. did not object to the trial court's procedure in replacing his prior counsel and appointing new counsel (Pet'r Mem. of Law at 16);
2. did not object to the reindictment ( id. at 16-19, 79-80);
3. failed to seek an examining trial based on the new indictment ( id. at 19-21);
4. gave Green bad advice regarding his eligibility for community supervision ( id. at 22-25);
5. did not object to the post-charge communication between the judge and the jury ( id. at 26-29);
6. failed to seek to suppress evidence seized in violation of the Fourth Amendment ( id. at 30-32);
7. failed to seek dismissal of the indictment because of an untimely probable-cause determination ( id. at 32);
8. did not call Green's father as a witness ( id. at 33-36);
9. did not assert self-defense and request an instruction on it ( id. at 36-39);
10. did not raise a Batson objection to the jury panel ( id. at 39-43);
11. failed to call witnesses to impeach Kaposta ( id. at 43-49);
12. did not require the State to authenticate the 911 tape or the knives ( id. at 49-54);
13. did not object to admission of evidence that Kaposta had received a protective order against Green ( id. at 54-55);
14. failed to object to the introduction of photos ( id. at 55-56);
15. denied Green the right to testify in his own defense ( id. at 57-64);
16. did not object to the judge's improper presence in the jury room ( id. at 64-67);
17. failed to tell Green he could object to the jury's separation ( id. at 67-69);
18. did not object to the introduction of unadjudicated extraneous offenses ( id. at 69-71);
19. did not introduce the 911 tape into evidence ( id. at 71-75);
20. failed to object to the State's questions that lessened its burden of proof on intent ( id. at 75-77);
21. incorrectly handled the motion to dismiss based on grand jury error ( id. at 77-78); and
22. failed to object to the State's bolstering of Kaposta's testimony during closing jury argument ( id. at 79).
a. Futility of action
Green has failed to show deficient performance regarding complaints 1, 2, 3, 5, 6, 7, 9, 12, 14, 18, 20, 21, and 22 as listed above because an objection or the requested action would have been futile and meritless. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (holding counsel not deficient for failing to make meritless argument).Because Green was not entitled to the appointed counsel of his choice and because the record does not show that replacing Shearin was improper, any objection by Abdal-Khallaq would have been futile. The State reindicted Green to add an enhancement paragraph, and his trial began 43 days later. (C.R. at 2-4; I R.R. at 1.) Thus, the reindictment was proper. TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon 1989); Swavely v. Cockrell, No. 4:02-CV-877-A, 2003 WL 21730502, at *2 (N.D. Tex. Apr. 3, 2003); Thibodeaux v. State, 726 S.W.2d 601, 603 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). The right to an examining trial, or probable-cause hearing, terminates upon indictment. TEX. CODE CRIM. PROC. ANN. art. 16.01 (Vernon Supp. 2004-05); State ex rel. Homes v. Salina, 784 S.W.2d 421, 426 (Tex.Crim.App. 1990). When Abdal-Khallaq was appointed, the indictment had been returned (C.R. 2-4, 6); thus, Green was not entitled to an examining trial at that point. The trial court's responses to the jury questions during deliberations, as reflected in the state court records, were proper. (C.R. at 50-53.) TEX. CODE CRIM. PROC. ANN. art. 36.28 (Vernon 1981); Dooley v. State, 65 S.W.3d 840, 843 (Tex.App.-Dallas 2002, pet. ref'd). Because it appeared Kaposta was in imminent danger, the police entry into the house without a warrant was justifiable under the exigent-circumstances exception to the warrant requirement; thus, any evidence seized was admissible. (II R.R. at 8-15, 35-44, 50-60, 68-75.) E.g., Tamez v. City of San Marcos, Tex., 118 F.3d 1085, 1093 (5th Cir. 1997), cert. denied, 522 U.S. 1125 (1998). A probable-cause determination is relevant to pretrial detention; thus, when Green was indicted by the grand jury, the issue of probable cause was settled, and any objection on that basis would have been futile. Gerstein v. Pugh, 420 U.S. 103, 119-20 (1975). Because no evidence shows the police used excessive force, Green was not entitled to a jury instruction on self-defense; thus, counsel is not deficient for failing to request an inappropriate instruction. TEX. PENAL CODE ANN. § 9.31 (Vernon 2003); Clifton v. State, 21 S.W.3d 906, 907-08 (Tex.App.-Fort Worth 2000, pet. ref'd); Pena v. State, 725 S.W.2d 505, 507 (Tex.App.-Corpus Christi 1987, no pet.). The 911 tape, the knives, and the photos were properly authenticated and, thus, admissible. TEX. R. EVID. 901(a), (b)(1), (b)(5). (I R.R. at 118-19, 122-23; II R.R. at 100-07.) The extraneous-offense evidence that Green used marijuana was admissible as same-transaction contextual evidence (I R.R. at 174), and the evidence of outstanding warrants and of prior police involvement with Green were admissible to show why the police acted with caution (II R.R. at 12, 52). TEX. R. EVID. 404(b); Lockhart v. State, 847 S.W.2d 568, 571 (Tex.Crim.App. 1992). The State's question to Kaposta suggesting that her belief that Green did not intend to use the knives on her or the police was irrelevant was a proper response to defense counsel's questions proposing that Green had armed himself to protect himself against the police. (I R.R. at 160-62, 169.) Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. [Panel Op.] 1982). Any argument in the motion to dismiss the indictment that the grand jury failed to take live testimony and did not return the indictment in open court would have been meritless. See Crocker v. State, 573 S.W.2d 190, 204 (Tex.Crim.App. [Panel Op.] 1978) (holding a facially valid indictment returned by legally constituted, unbiased grand jury is sufficient to mandate a trial). Finally, the two statements by the State during closing jury arguments (II R.R. at 126-27) were not improper bolstering of Kaposta's testimony but were permissible rebuttal to defense counsel's arguments attacking Kaposta's credibility ( id. at 119-20). Bryant v. State, 923 S.W.2d 199, 212 (Tex.App.-Waco 1996), pet. ref'd, 940 S.W.2d 663 (Tex.Crim.App. 1997); Vasquez v. State, 830 S.W.2d 829, 831 (Tex.App.-Corpus Christi 1992, pet. ref'd).
b. Trial strategy
With regard to claims 8, 10, 13, 17, and 19 as listed above, Green has failed to show that counsel's actions were not the result of sound trial strategy. As such, her actions cannot be second-guessed as deficient. Strickland, 466 U.S. at 689-90.
Green's father stated in an affidavit that Kaposta previously had threatened to have Green arrested after she saw him dancing with another woman, that alcohol and medication had an adverse effect on Kaposta, and that Green did not use drugs. (5 State Habeas R. at 170-71.) Green's father's recollection of the charged offense agrees with that of the police and Kaposta. ( Id. at 171-73.) Counsel could have determined that his testimony would have been irrelevant and inadmissible or not exculpatory. Further, because Green's father was arrested at the same time Green was, she might have determined that his testimony would not have been credible. This strategic decision cannot be second-guessed. E.g., United States v. Abner, 825 F.2d 835, 845 (5th Cir. 1987); United States v. Johnson, 615 F.2d 1125, 1127 (5th Cir. 1980) (per curiam).
Green next argues that counsel should have raised a Batson objection to the jury panel because only 7 or 8 of the 60 panel members were black, and the resulting jury was all white. Counsel's decisions regarding voir dire are the product of trial strategy. Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995); Walbey v. Dretke, 110 F. Supp. 2d 549, 560-61 (S.D. Tex. 2000), vacated remanded on other grounds, 100 Fed. Appx. 232, 2004 WL 909736 (5th Cir. Apr. 29, 2004) (unpublished per curiam op.); Heard v. State, 887 S.W.2d 94, 102 (Tex.App.-Texarkana 1994, pet. ref'd).
Regarding evidence of the protective order, Kaposta testified that after Green was arrested, she sought and received a protective order against Green based on the November 1997 incident and earlier conflicts with Green. (I R.R. at 137-38; II R.R. at 183.) Although counsel did not object to the admission of the protective order, she used the evidence to challenge Kaposta's credibility. (I R.R. at 187, 192-93.) This is permissible trial strategy that does not support a finding of deficient performance. Heiman v. State, 923 S.W.2d 622, 626-27 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd).
Green argues that counsel should have moved to sequester the jury once deliberations began. TEX. CODE CRIM. PROC. ANN. art. 35.23 (Vernon Supp. 2004-05). Counsel could have determined that requiring the jury to be sequestered would have caused the jury to rush its deliberations, which is a reasonable trial strategy. Prejean v. State, 32 S.W.3d 409, 411 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Further, Green has failed to show how he was harmed by the jury's separation. Id.
Green asserts that counsel should have introduced the 911 tape into evidence to show Green acted reasonably in arming himself as protection from the police. Green himself points out the reasonable trial strategy for not seeking to admit the tape: Kaposta could be heard in the background on the tape asking to be let out of the house, which would have allowed the jury to infer that Green was holding her against her will. (Pet'r Mem. of Law at 73.) Johnson v. Cockrell, 306 F.3d 249, 253 (5th Cir. 2002), cert. denied, 538 U.S. 926 (2003); Kitchens v. Johnson, 190 F.3d 698, 701-03 (5th Cir. 1999).
c. Remaining allegations
Green has also failed to show deficient performance regarding claim 4 listed above. Green argues that he received incorrect advice from counsel that he was ineligible for community supervision, which caused him to reject the State's five-year plea bargain. See Hooks v. State, 860 S.W.2d 110, 113-14 (Tex.Crim.App. 1993) (holding if judge finds defendant guilty in bench trial but fails to enter an affirmative deadly-weapon finding, community supervision is not precluded notwithstanding the limitation of article 42.12, section 3g(a)(2) of the Code of Criminal Procedure). He bases his contention on the fact that counsel sent him a "Status Letter," informing him of the State's plea-bargain offer and that he was ineligible for community supervision. The letter specifically stated that community supervision was "NA" and that the State was recommending five years' confinement in exchange for Green's guilty plea. (5 State Habeas R. at 167.) A reasonable reading of this letter is that counsel was informing Green that community supervision was not part of the State's plea-bargain offer. Additionally, the "Status Letter" Green provided in the state habeas record is not a complete copy; thus, it would be inappropriate to find counsel gave Green incorrect advice regarding community supervision based on an incomplete letter.Green argues that counsel was ineffective for failing to call nine specified witnesses to impeach Kaposta. Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001). For Green to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witness would have testified. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Green has failed to provide affidavits or other evidence from the witnesses that he argues should have been called and only lists his bare assertions that they would have effectively impeached Kaposta. The limited and conclusory information Green provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp. 2d 398, 400 (N.D. Tex. 2001).
Green asserts that counsel prevented him from testifying. There is no evidence that Green wanted to testify. In fact, counsel implied during voir dire that Green would not testify. (I R.R. at 69-75.) Green's conclusory allegation that counsel affirmatively blocked his attempt to testify is insufficient to show either deficient performance or prejudice. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Green argues counsel was ineffective for consenting to the trial court's communication with the jury in the jury room during deliberations. The trial judge dismissed the jurors for the day, admonished them, and told them to return the next morning to continue their deliberations. (II R.R. at 136.) Green has failed to show any harm flowing from the trial court's communication with the jury; thus, he cannot show the requisite prejudice. Strickland, 466 U.S. at 689-94.
2. Trial Counsel at Punishment
Green asserts that trial counsel was constitutionally ineffective at punishment when she:
1. did not review the pen packet, request a continuance to review the pen packet, object to the admission of the pen packet, or move to strike portions of the pen packet (Pet'r Mem. of Law at 81-86, 91-93);
2. allowed Green to plead true to a void prior conviction based on the defective pen packet ( id. at 86-90, 102-04);
3. failed to object to Kaposta's testimony regarding unadjudicated extraneous offenses ( id. at 90);
4. argued that Green's family had abandoned him without contacting his family members ( id. at 93-95);
5. failed to object to evidence of a Louisiana bill of information, which contained a description of a greater offense that Green was not convicted of ( id. at 96-97);
6. did not request an instruction of the State's burden of proof regarding the extraneous offenses ( id. at 98-99); and
7. failed to object to the State's questions to Kaposta about knives ( id. at 99-102).
Claims 1, 2, and 5 above attack counsel's actions regarding the pen packet and the enhancing offense. Green signed a stipulation of evidence acknowledging that the Louisiana pen packet related to his prior conviction and he also pleaded true to the enhancing offense. (II R.R. at 138-46, 194.) His plea waived any complaint he had in connection with the proof of the enhancing offense. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1984) Green was surely aware of any infirmity in the enhancing conviction; thus, he cannot now argue that counsel should have discovered something Green was aware of. See Randle v. Scott, 43 F.3d 221, 225 (5th Cir.) (per curiam) (holding counsel not deficient when defendant told attorney to quit investigating prior conviction, even though it had been reversed, to expedite his guilty plea), cert. denied, 515 U.S. 1108 (1995); Bell v. Watkins, 692 F.2d 999, 1009 n. 11 (5th Cir. 1982) (holding counsel not deficient when defendant refused to provide a list of witnesses that would help his case), cert. denied, 464 U.S. 843 (1983); Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982) (same), cert. denied, 461 U.S. 910 (1983); Akridge v. Hopper, 545 F.2d 457, 459 (5th Cir.) (holding counsel not deficient where defendant claimed he could remember nothing of the crime and gave no indication of a credible defense), cert. denied, 431 U.S. 941 (1977). Counsel was not deficient.
Green argues counsel was ineffective for failing to call his family members as witnesses and instead stating that they had abandoned Green. Regarding Green's father and as discussed above, counsel could have determined that he would not have been a credible witness, which was a reasonable trial strategy. Regarding the remaining unnamed relatives, Green fails to show either that they would have been willing and available to testify or that their testimony would have been favorable, but also that the witness would have testified. Alexander, 775 F.2d at 602. Green has failed to provide affidavits or other evidence from the witnesses that he argues should have been called and only lists his bare assertions that their testimony would have been favorable.
Green asserts that counsel should have objected to the introduction of extraneous-offense evidence. This evidence was admissible at punishment; thus any objection would have been meritless. TEX. CODE CRIM. PROC. ANN. art. 37,07, § 3(a)(1) (Vernon Supp. 2004-05). Counsel was not deficient. Marshall, 835 F.2d at 1103.
Green asserts that counsel was ineffective at punishment when counsel did not seek a jury instruction on the State's burden of proof regarding unadjudicated extraneous-offense evidence, i.e., the jury must be satisfied beyond a reasonable doubt that the acts were attributable to Green. A Texas trial court has a state-law, nonconstitutional duty to give a reasonable-doubt instruction at punishment regarding unadjudicated extraneous-offense evidence even in the absence of a request from counsel. Huizar v. State, 12 S.W.3d 479, 482-83 (Tex.Crim.App. 2000); see also TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1). Assuming that counsel's failure to ensure that Green received a reasonable-doubt instruction at punishment was deficient performance, he has failed to show the requisite prejudice under Strickland. Law v. Cockrell, No. 4:03-CV-131-A, 2003 WL 21555322, at *3 (N.D. Tex. July 3, 2003). In the case of ineffective assistance during the punishment phase, prejudice is established if a petitioner demonstrates that his sentence was increased by the deficient performance of his attorney. Glover v. United States, 531 U.S. 198, 200, 203-04 (2001). In other words, the petitioner must show that counsel's deficiencies created a reasonable probability that his sentence would have been less harsh. See id. at 200. Green was found guilty of aggravated assault, and he pleaded true to the enhancing offense; thus, he was subject to a punishment range of 5 to 99 years' confinement. TEX. PENAL CODE ANN. § 12.32(a) (Vernon 2003), §§ 12.42(b), 22.02 (Vernon Supp. 2004-05). (C.R. at 56.) Green cannot show prejudice given that he pleaded true to the enhancement paragraph, which elevated the punishment range for his offense to a first-degree felony, and the jury's sentence was at the low to mid-range of statutory punishments available. In other words, there is no showing that but for the absence of a reasonable-doubt instruction, the jury would have imposed a lower sentence. See Glover, 531 U.S. at 204 (in discretionary sentencing system, holding amount by which a defendant's sentence is increased may be a factor to consider in determining whether counsel was ineffective and implying it could bar prejudice showing); Spriggs v. Collins, 993 F.2d 85, 88-89 (5th Cir. 1993) ("In deciding whether prejudice occurred, a court should consider a number of factors: the actual amount of the sentence imposed on the defendant by the sentencing judge or jury, the minimum and maximum sentences possible under the relevant statute or sentencing guidelines, the relative placement of the sentence actually imposed within that range, and the various relevant mitigating and aggravating factors that were properly considered by the sentencer.").
During closing argument, the State asserted that Green had held "butcher knives to [Kaposta's] throat." (II R.R. at 170.) Green contends that counsel should have objected because there was no evidence to support that statement. Kaposta had testified that Green had a knife in each hand, he dragged her around the house, he pointed a knife at her body, and she had bruises on her neck after the assault. (I R.R. at 123, 125-126, 128, 162-63, 169.) The State's argument was therefore a reasonable deduction from the evidence, and any objection on this basis would have been futile. Flowers v. State, 133 S.W.3d 853, 858 (Tex.App.-Beaumont 2004, no pet.). Counsel cannot be held defective for failing to make a meritless objection. Marshall, 835 F.2d at 1103.
3. Appellate Counsel
Green also argues that appellate counsel was constitutionally ineffective because he:
1. failed to file a motion for new trial or file affidavits to support Green's pro se motion for new trial and
2. did not raise issues Green wanted him to raise. (Pet'r Mem. of Law at 105-17.)
Claims of ineffective assistance of appellate counsel must likewise meet the strict Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish deficient performance, Green must show that counsel unreasonably failed to discover and raise nonfrivolous issues. Id. To establish prejudice, Green must demonstrate that, but for counsel's error, he would have prevailed on appeal. Id.
Green has failed to show that a motion for new trial was meritorious and would have resulted in relief. Likewise, the claims Green argues appellate counsel should have raised are without merit. Thus, Green cannot satisfy the Strickland requirements. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994); Cantu v. Collins, 967 F.2d 1006, 1017 (5th Cir. 1992), cert. denied, 509 U.S. 926 (1993); Duhamel v. Collins, 955 F.2d 962, 967 (5th Cir. 1992). Further, the trial court concluded that counsel had rendered effective assistance and credited his statements that he had raised all non-frivolous grounds and that the pro-se, new-trial motion had been timely presented. (5 State Habeas R. at 283-84, 286.) Green has not overcome the presumption of correctness of these determinations. 28 U.S.C. § 2254(e)(1).
4. Cumulative Error
Green argues that the cumulative effect of trial and appellate counsel's errors resulted in Strickland prejudice and, thus, violated the Sixth Amendment. (Pet'r Mem. of Law at 117.) Habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law, (2) the errors were not procedurally defaulted, and (3) the errors so infected the entire trial that the resulting conviction violates due process. Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en banc). However, a habeas petitioner may not just complain of unfavorable rulings or events in an effort to cumulate errors. Id. at 1458. As noted above, Green's claims regarding counsel's representation are either meritless or do not rise to the federal constitutional dimension necessary to warrant cumulative-error analysis. As such, Green has presented nothing to cumulate. Livingston v. Johnson, 107 F.3d 297, 309 (5th Cir.), cert. denied, 522 U.S. 880 (1997). The entirety of the record compels this court to conclude that counsel was constitutionally effective. Cf. Engle v. Isaac, 456 U.S. 107, 134 (1982) (holding Constitution guarantees criminal defendants only fair trial and competent counsel, not that every conceivable claim will be raised).
G. SUMMARY
Green is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Green was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.