Opinion
No. 3:02-CV-2038-L.
March 9, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. Parties: Petitioner Idehen Amas Igbinoba is an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division. Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. Factual and Procedural History: As thoroughly and clearly recited by the state court of appeals, the facts of the offenses are as follows:
Robert Lee Cox is a Senior Special Agent for the National Insurance Crime Bureau (NICB). Cox testified NICB is a non-profit organization funded by the insurance industry whose "mission" was to detect "fraudulent activity in insurance claims." In January 1998, NICB noticed a number of insurance claims on the same automobiles and that payments were being sent to private mail boxes. NICB further noted the claims were on policies that were relatively new, the claims processes were handled by telephone and not face-to-face contact, and the same names were being used to file claims with multiple insurance companies. When some of the insurance companies tried to contact the claimants, the claimants would either disavow any knowledge of the claim or refuse to meet with the companies. NICB considered the claims "suspicious," and contacted the Texas Department of Insurance with their concerns, specifically, that some individuals were stealing other persons['] identities and using the stolen identities to file false claims.
Sergeant Wayne Sneed is an investigator for the Texas Department of Insurance Fraud Unit (TDI). In July 1997, he began investigating claims referred to him from six insurance companies in which the same vehicle had been involved in multiple accidents. Later, he began investigating the suspicious claims detected by NICB. Sneed testified his investigation revealed a "ring" of "alien nationals" who were involved in staging auto accidents and collecting insurance proceeds. The persons in the ring would obtain the names of other people and either register cars in their names or file claims under the stolen names. The conspirators would have the insurance proceeds sent to a private mail box.
Sneed tracked down the named claimants involved, and all of the[m] denied they had made the claims or authorized anyone to make the claims on their behalf. Sneed determined the [claimants'] identities had been stolen, so he then focused on finding the persons who actually received the insurance proceeds. By tracking the checks issued by the insurance companies, Sneed determined [Igbinoba] was part of the ring. Sneed compared Texas Department of Public Safety photographs and discovered [Igbinoba] had established a separate identity for himself under the name Edowany Amasowomwan (Edowany). Under that name, [Igbinoba] was doing business as EDO's Cleaning Service (EDO's), as shown by an assumed name record on file in Dallas County. EDO's address was a private mail box on Preston Road in Dallas, and "Edowany" received mail at that address. Under his real name, [Igbinoba] was dong business as Idehen Auto Mobile Detail Services (MDS), again, as shown by an assumed name record filed in Dallas County. MDS's address was given as a private mail box on Forest Lane in Dallas, and [Igbinoba] received mail at that address. Sneed obtained bank records for EDO's and MDS which showed Edowany opened and exclusively controlled the EDO's account and showed [Igbinoba] opened and exclusively controlled the MDS account. Sneed found that numerous insurance proceeds checks had been deposited into the EDO's and MDS bank accounts. Specifically, checks written to "John Reed," "Charles Walkes," "Anthony Johns," "Chad Wade," and "Willard Thompson," each with a secondary endorsement by Edowany, were deposited in the EDO's account. No checks other than insurance checks had been deposited into that account. Checks written to "John Reed," "Charlie Walkes," "Chad Wade," and "Jesse Hood," most with a secondary endorsement by [Igbinoba], were deposited in the MDS account. Of all the checks deposited in the MDS account, only three were actually written to [Igbinoba]. Sneed deduced the endorsements of the payees on the deposited insurance checks were forgeries. Sneed also determined that [Igbinoba's] name never appeared on any of the suspicious claims. Sneed testified [Igbinoba's] role in the scheme was to deposit the insurance checks and "launder" the money and that [Igbinoba] may not have necessarily been aware of the roles of others in the scheme. Sneed testified [Igbinoba's] actions of depositing insurance checks with forged payee endorsements matched the activities of other ring members whose role was to launder money. On cross-examination, Sneed admitted he had found no one who had seen [Igbinoba] actually handling or depositing the checks. Sneed also admitted he did not know what happened to the money after it was deposited in [Igbinoba's] accounts.
Deputy Richard Hamb testified as a fingerprint identification expert. He opined a fingerprint he took from [Igbinoba] the morning of trial matched fingerprints on separate Texas Department of Public Safety records for an "Idehen Amas Igbinoba" and "Edowany Amasowomwan."
John Reid testified he lost his driver's license at a pool hall called the "Royal Rack" in 1996 or 1997. He denied receiving insurance checks later deposited in [Igbinoba's] bank accounts. He also denied endorsing the checks, noting the endorsements were not his signature and did not have his correct date of birth. He stated the checks did list his driver's license number, but denied knowing anyone by the names Edowany Amasowomwan or Idehen Igbinoba. Charlie Wilkes testified he had left his license at the Royal Rack. He denied endorsing any of the insurance checks deposited in [Igbinoba's] accounts or receiving their proceeds. Anthony Johns, Chad Waide, Jesse Hood, and Willard Thompson each told similar stories of having lost their driver's licenses or credit cards at some point in the past. Each denied endorsing the checks made payable to them, which were later deposited in [Igbinoba's] accounts, or knowing [Igbinoba] or Edowany Amasowomwan. Most of the witnesses testified they had played pool at the Royal Rack and that they had to tender their driver's licenses to Royal Rack employees to obtain cue balls to play pool.
[Igbinoba] testified his real name was Idehen Igbinoba. He was born in Nigeria, but had been in the United States for the past six years. [Igbinoba] testified Edowany Amasowomwan was one of his brothers who still lived in Nigeria. [Igbinoba] claimed he had filled out immigration paperwork on his brother's behalf in an attempt to bring him to America from Nigeria. Appellant testified a man named Stanley had used the paperwork to obtain a driver's license for [Igbinoba's] brother and ended up using [Igbinoba's] picture on the license instead of a picture of [Igbinoba's] brother. [Igbinoba] denied filling out the driver's license application, but admitted supplying the fingerprint on the license. [Igbinoba] testified he had no idea what happened to the license in his brother's name or who had it. [Igbinoba] also testified he had tried to do business as MDS, but denied ever doing business as EDO's or knowing about its mail box. [Igbinoba] conceded he had used the MDS bank account, but claimed the insurance checks deposited into that account were from legitimate sources. [Igbinoba] testified the checks were given to him in payment for him transporting the bearers to auto auctions. [Igbinoba] explained he would deposit the checks in their own accounts for fear the government would take the proceeds away from them. [Igbinoba] denied knowing anything about other Nigerians operating a scheme to defraud insurance companies or that the checks had been fraudulently obtained.Igbinoba v. State, Nos. 5-00-1566-CR, 5-00-1569-CR, 5-00-1567-CR, 5-00-1568-CR, 2001 WL 1071265, at *1-2 (Tex.App. — Dallas Sept. 14, 2001, no pet.) (not designated for publication).
Several of the endorsements were by an "Igbinoba Idehen" instead of "Idehen Igbinoba." One endorsement was "For Deposit Only." On his federal habeas corpus petition, Igbinoba listed his name as "Idehen Amas Igbinoba," but signed his name as "Igbinoba Idehen." (Federal Pet. at 1, 11; Pet'r Resp. at 21.)
Several of the endorsements were by an "Igbinoba Idehen" instead of "Idehen Igbinoba." One endorsement was "For Deposit Only." On his federal habeas corpus petition, Igbinoba listed his name as "Idehen Amas Igbinoba," but signed his name as "Igbinoba Idehen." (Federal Pet. at 1, 11; Pet'r Resp. at 21.)
After a bench trial, Igbinoba was convicted of forgery and three counts of money laundering. The court assessed punishment at 2 years' confinement on the forgery conviction and at 10 years' confinement on each of the money-laundering cases, to be served concurrently. (1-3 State Habeas R. at 230; 4 State Habeas R. at 37; 1355 C.R. at 7; 3 R.R. at 12.) The Dallas Court of Appeals affirmed the trial court's judgments, and Igbinoba did not file a petition for discretionary review. Id. On December 5, 2001, Igbinoba filed three state applications for habeas corpus relief challenging his money-laundering convictions. (1-3 State Habeas R. at 4, 63, 123.) On February 8, 2002, he filed a state habeas corpus application, challenging his forgery conviction. (4 State Habeas R. at 2.) The State responded to Igbinoba's applications on December 18, 2001 and February 19, 2002. The trial court's failure to act on Igbinoba's state habeas applications within 20 days after the State responded constituted a finding that there were no controverted, previously unresolved facts material to the legality of the Igbinoba's confinement; thus, the trial court clerk forwarded the applications to the Court of Criminal Appeals on January 11, 2002 and March 14, 2002. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(c) (Vernon Supp. 2004-05). (1-3 State Habeas R. at 235; 4 State Habeas R. at 42.) The Court of Criminal Appeals denied all four state habeas applications without written order on April 24, 2002. Ex parte Igbinoba, Nos. 51,436-01, -02, -03, -04 (Tex.Crim.App. Apr. 24, 2002) (not designated for publication). Igbinoba filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on September 10, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
Because Igbinoba's first three state habeas applications were filed on the same day, they were combined into one writ record with three cover sheets.
The court modified Igbinoba's forgery conviction to delete the finding that he had been previously convicted of a felony. Igbinoba, No. 5-00-1567-CR, 2001 WL 1071265, at *7.
D. Issues: Igbinoba argues that (1) the arrest and search violated the Fourth Amendment, which should have precluded admission of any resultant evidence; (2) the State did not give the required notice of a consolidated prosecution; (3) he was denied exculpatory evidence by the State; (4) the four indictments were improperly joined; (5) the trial court denied compulsory service on witnesses; (6) the court of appeals did not properly admonish him regarding self-representation; (7) the evidence was legally and factually insufficient to support the convictions; (8) trial counsel was constitutionally ineffective; and (9) appellate counsel was constitutionally ineffective.
E. Exhaustion: Dretke argues that many of Igbinoba's claims have not been exhausted and asserts that they have been procedurally defaulted, but concedes that some allegations have been properly exhausted. (Resp't Answer at 7.)
II. EXHAUSTION AND PROCEDURAL DEFAULT
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).In his state habeas applications, Igbinoba did not argue that trial counsel was ineffective (Claim 8) for (a) failing to file "vital" pretrial motions; (b) failing to ask for a 30-day notification of consolidation of the four indictments; (c) not objecting to the State's failure to make an opening argument; (d) waiving error on misjoinder; and (e) not filing a motion for new trial. (Federal Pet. at 7; Pet'r Mem. in Supp. at 8-11, 14.) He also did not raise in the state habeas courts his claims that his due-process rights were violated when he did not receive notice of the consolidation (Claim 2), the court of appeals failed to properly admonish him about self-representation (Claim 6), and the indictments were improperly joined for trial (Claim 4). (Federal Pet. at 8; Pet'r Mem. in Supp. at 19-21, 33-34.) His ninth claim that appellate counsel was ineffective is also raised for the first time in his federal habeas corpus petition. (Federal Pet. at 8; Pet'r Mem. in Supp. at 27-32.) Thus, Igbinoba seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001). Other than his claim that counsel was ineffective for failing to file pretrial motions, Igbinoba admits that these claims are not exhausted and requests that this Court "delete" them from his petition. (Pet'r Resp. at 3.) Thus, these claims will not be considered.
Dretke states that this allegation is exhausted; however, after a complete review of Igbinoba's four state habeas applications, this claim cannot be found to have been properly raised in the state courts. Thus, for the reasons stated in this section, it is unexhausted and procedurally defaulted. See Graham v. Johnson, 94 F.3d 958, 970-71 (5th Cir. 1996) (stating court may accept or reject State's waiver of exhaustion or may raise exhaustion sua sponte).
Additionally, because these claims were available to Igbinoba when he filed his state habeas corpus applications, they would be procedurally defaulted and barred from this Court's review. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999).
Regarding his claim that counsel was ineffective for not filing pretrial motions, Igbinoba cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Igbinoba has not given any explanation to excuse his default. Indeed, any problems with counsel's representation were known to him before he filed his state habeas corpus applications. Robison, 151 F.3d at 263. Accordingly, this claim is procedurally defaulted.
Even if not procedurally barred from this Court's review, Igbinoba does not specify in his federal petition what specific motions counsel should have filed. (Federal Pet. at 7; Pet'r Mem. in Supp. at 8.) This conclusory allegation is insufficient to prove either deficient performance or prejudice, which is required for an ineffective-assistance-of-counsel claim. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
III. 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).
IV. FOURTH AMENDMENT
Igbinoba asserts that the arrest and search violated the Fourth Amendment; thus, any evidence acquired as a result of the arrest and search should have been excluded. (Federal Pet. at 8-9; Pet'r Mem. in Supp. at 16-19, 22-23; Pet'r Resp. at 11.) Igbinoba did not attack the constitutionality of the arrest and search until he filed his state habeas corpus applications. (1-3 State Habeas R. at 55-58; 4 State Habeas R. at 10.) A federal court cannot entertain a Fourth Amendment claim brought by a habeas petitioner attacking his state court conviction if the petitioner had an opportunity for full and fair litigation of that claim in the state courts. Stone v. Powell, 428 U.S. 465, 495 (1976); Jones v. Johnson, 171 F.3d 270, 278 (5th Cir.), cert. denied, 527 U.S. 1059 (1999). When a defendant fails to raise his Fourth-Amendment claim at trial, Stone bars habeas relief on Fourth-Amendment grounds, even though no state hearing was held on the claim. Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978). Because Igbinoba had a full and fair opportunity to litigate his Fourth-Amendment claim in the state courts, it is barred from federal habeas corpus review. E.g., Janecka v. Cockrell, 301 F.3d 316, 320-21 (5th Cir. 2002), cert. denied, 537 U.S. 1196 (2003).
V. BRADY VIOLATION
Igbinoba argues that the State did not disclose exculpatory evidence as constitutionally required. Specifically, he asserts that the State failed to disclose evidence that proved Igbinoba and his brother Edowany were two separate people and that Edowany may have been in the United States during the time the offenses were committed. (Federal Pet. at 8; Pet'r Mem. in Supp. at 23-27.)
Igbinoba also argues that defense counsel violated Brady. This claim will be addressed in conjunction with his claim that counsel was ineffective for failing to request exculpatory evidence.
A petitioner's due-process rights are violated when the State suppresses impeachment or exculpatory evidence where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the State. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Igbinoba must prove that: (1) the State suppressed or withheld evidence (2) that was favorable and (3) material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998), cert. denied, 525 U.S. 1119 (1999). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 684 (1985). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. at 678. Evidence is not considered material if evidence which is similar to the suppressed evidence is admitted before the fact-finder. E.g., Jackson v. Johnson, 194 F.3d 641, 650 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000); Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996), cert. denied, 519 U.S. 1094 (1997); Spence v. Johnson, 80 F.3d 989, 995 (5th Cir.), cert. denied, 519 U.S. 1012 (1996); Edmond v. Collins, 8 F.3d 290, 293-94 (5th Cir. 1993); Brogdon v. Blackburn, 790 F.2d 1164, 1168 (5th Cir. 1986) (per curiam), cert. denied, 481 U.S. 1012 (1987). Whether evidence must be produced and whether it is material under Brady is a mixed question of law and fact. Brown v. Cain, 104 F.3d 744, 750 (5th Cir.), cert. denied, 520 U.S. 1195 (1997).
Igbinoba has not shown that the State suppressed or withheld evidence that Edowany is a separate individual or that he was in the United States during the relevant time. In fact, evidence that Edowany is Igbinoba's brother was admitted before the fact-finder, as well as testimony that Igbinoba had completed paperwork to bring his brother into the country. (2 R.R. at 128.) Furthermore, evidence is not considered suppressed if the defendant knew or should have known of the facts of any exculpatory evidence. Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994); Blackmon v. Scott, 22 F.3d 560, 564-65 (5th Cir.), cert. denied, 513 U.S. 1060 (1994). Igbinoba was in a better position than the State to know whether his brother was in the country during the relevant time period. Finally, the Court finds no reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Some of the checks were deposited into Igbinoba's bank account, and Igbinoba admitted that he was photographed and fingerprinted in order to obtain a driver's license in Edowany's name. (2 R.R. at 36-38, 51-54, 133-35.) Igbinoba has failed to establish a Brady violation.
VI. COMPULSORY PROCESS
Igbinoba contends that his due-process rights were violated when the trial court denied him compulsory process on witnesses. U.S. CONST. VI. (Federal Pet. at 8.) Igbinoba fails to specify what witnesses should have been compelled to testify and, concomitantly, does not provide any proof what these unnamed witnesses would have testified to. Even assuming Igbinoba is asserting the witnesses he listed in his pro se, pretrial "Motion to Subp[oe]na Witness[es]" should have been compelled to testify by the trial court (238 C.R. at 16), he fails to show the content of their testimony or how it would have been relevant. This deficiency is fatal to his compulsory-process claim. See Ross, 694 F.2d 1010-11 (holding if defendant does not show some need for requested witnesses, Sixth Amendment is not violated).
VII. SUFFICIENCY OF THE EVIDENCE
Igbinoba argues that the evidence is legally and factually insufficient to support his convictions. (Federal Pet. at 9; Pet'r Resp. at 12.) On appeal, the intermediate appellate court found that the evidence was legally sufficient to support his convictions. Igbinoba, 2001 WL 1071265, at *3-5. Igbinoba also raised his insufficiency challenge in his state habeas corpus applications. (1-3 State Habeas R. at 41-46; 4 State Habeas R. at 9.) In its responses to Igbinoba's applications, the State asserted that the claim was procedurally barred because it had been raised and rejected on direct appeal. (103 State Habeas R. at 188; 4 State Habeas R. at 17.) Ex parte Ramos, 977 S.W.2d 616, 617 (Tex.Crim.App. 1998). The state trial court made no express ruling on Igbinoba's application; instead, it was forwarded to the Court of Criminal Appeals with an implied finding that there were no controverted, previously unresolved facts material to the legality of the Igbinoba's confinement. The Court of Criminal Appeals denied the application without written order.
This Court will not address Igbinoba's factual-insufficiency arguments because they are not cognizable on federal habeas. Fox v. Johnson, No. 4:00-CV-291-Y, 2001 WL 432247, at *2 (N.D. Tex. Apr. 20, 2001), adopted, 2001 WL 540215 (N.D. Tex. May 17, 2001).
Although the Court of Criminal Appeals stated no reasons when it denied habeas relief, that court has long held that the sufficiency of the evidence may only be raised on direct appeal and may not be raised in a state habeas proceeding. West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996); McLain, 869 S.W.2d at 350. Indeed, the Court of Criminal Appeals recently reaffirmed that where a state habeas applicant challenges the sufficiency of the evidence in a state habeas application and the court subsequently disposes of the application by entering a denial without written order, the applicant's sufficiency claim was denied because it was not cognizable. Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004). Thus, this procedural default in the state courts procedurally bars this Court from addressing the merits of Igbinoba's sufficiency claim.
Even if this claim were not barred, Igbinoba would not be entitled to relief. The crux of his claim is that the fact-finder declined to resolve the fact issues in his favor. This is inadequate to establish that the evidence was legally insufficient. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822 (2000). Further, the state court of appeals' conclusion did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law and did not result 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).
VIII. 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.
Igbinoba asserts that trial counsel was constitutionally ineffective when he:
1. failed to properly investigate and relied on the State's presentation of the facts;
2. did not ask for production of the arrest warrant or the complaint;
3. agreed Igbinoba was the person named in the indictment;
4. failed to subpoena "vital" alibi witnesses and his friends and family;
5. failed to object to evidence used against him that was obtained in violation of the Fourth Amendment;
6. did not request disclosure of exculpatory evidence and withheld exculpatory evidence;
7. did not ask for a fingerprint expert and testimony from DPS and bank officials to show Igbinoba was not the person who committed the offenses; and
8. did not object to the void indictments. (Federal Pet. at 7; Pet'r Mem. in Supp. at 8-15.)
These complaints 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).
First, Igbinoba cannot meet the prejudice requirement of the Strickland test. As shown by the facts as recited above in section I.C., the evidence clearly establishes Igbinoba's guilt; thus, he cannot show that the result of the trial would have been different had counsel acted differently. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002), cert. denied, 538 U.S. 1001 (2003); Creel v. Johnson, 162 F.3d 385, 396 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999). Second, as demonstrated below, Igbinoba has failed to show deficient performance.
A. Failure to Investigate
In his first ineffective assistance claim, Igbinoba argues that counsel failed to investigate and discover that he was not the person charged in the indictments. (Federal Pet. at 7; Pet'r Mem. in Supp. at 8, 10-15.) In order to establish that counsel was ineffective due to a failure to investigate the case, Igbinoba must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp. 2d 661, 691 (S.D. Tex. 2001). Igbinoba fails to meet his burden of specificity on this claim; thus, he is not entitled to relief.
B. Failure to Require Copies of Warrant and Complaint
In his first ineffective assistance claim, Igbinoba asserts that counsel should have required the State to produce copies of the warrant and the complaint. (Federal Pet. at 8; Pet'r Mem. in Supp. at 8, 11.) The record reflects that Igbinoba was provided a copy of the indictments, he was informed what the charges were, and the trial court explained the charges to him. (2 R.R. at 4-7.) A warrant was not required for the bank records. United States v. Miller, 425 U.S. 435, 440-45 (1976). Counsel was therefore not deficient. 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).
Igbinoba was charged by indictment and not by information based upon complaint. (1-3 State Habeas R. at 228; 4 State Habeas R. at 34; 1355 C.R. at 2.) See generally TEX. CODE CRIM. PROC. ANN. arts. 21.01, 21.22 (Vernon 1989).
C. Acknowledgment of Identity
Igbinoba insinuates that because counsel acknowledged Igbinoba was the person named in the indictments, he made an untruthful statement to the trial court. (Federal Pet. at 7.) The indictments were in the name "Idehen Amas Igbinoba." (1-3 State Habeas R. at 228; 4 State Habeas R. at 34; 1355 C.R. at 2.) Igbinoba has never disputed that he is "Idehen Amas Igbinoba." By stating that Igbinoba was the person named in the indictments, (2 R.R. at 4), counsel was not admitting that Igbinoba committed the offenses, but only that Igbinoba was Idehen Amas Igbinoba. Cf. Warren v. State, 98 S.W.3d 739, 741-42 (Tex.App.-Waco 2003, pet. ref'd) (holding indictment variance of defendant's name was not fatal because defendant had sufficient notice of the charges to prepare a defense). Counsel was not deficient.
D. Failure to Subpoena Witnesses
Igbinoba argues that counsel was ineffective for failing to subpoena "vital" alibi witnesses and his friends and family. (Federal Pet. at 7; Pet'r Mem. in Supp. at 9-10.) 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 Igbinoba to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witnesses would have testified. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Igbinoba has failed to provide an affidavit or other evidence from the witnesses. The limited and conclusory information Igbinoba 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).
E. Failure to Object to Evidence
Igbinoba contends counsel failed to object to admission of evidence that was obtained in violation of the Fourth Amendment. (Federal Pet. at 7; Pet'r Mem. in Supp. at 9-11, 14.) As stated above, the evidence was not illegally obtained without a warrant. Miller, 425 U.S. at 440-45. Thus, counsel cannot be held defective for failing to object on this basis. Marshall, 835 F.2d at 1103.
F. Failure to Request and Withholding Exculpatory Evidence
Igbinoba's next attack on counsel's performance is that he did not request disclosure of exculpatory evidence and withheld exculpatory evidence from Igbinoba. Specifically, he points to evidence that proves the existence of Edowany, that Edowany's fingerprints are not the same as his, and the possibility that Edowany may have been in America when the offenses were committed. (Federal Pet. at 7; Pet'r Mem. in Supp. at 9-11, 14.) As discussed above in Section V., Igbinoba has failed to establish that this evidence was material. Many of the fraudulent claim checks were deposited into Igbinoba's bank account and, by his own admission, Igbinoba got a driver's license in Edowany's name. Further, other than his conclusory allegations, he has failed to show that the State suppressed any evidence. See, e.g., Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) (holding evidence is not considered suppressed if the defendant knew or should have known of the facts of any exculpatory evidence); Blackmon v. Scott, 22 F.3d 560, 564-65 (5th Cir.) (same), cert. denied, 513 U.S. 1060 (1994). Igbinoba has failed to establish a Brady violation, and counsel cannot be found deficient.
G. Failure to Request Experts
Igbinoba next argues that counsel should have requested an independent fingerprint expert and testimony from DPS and bank officials to prove he did not commit the offenses. (Federal Pet. at 7; Pet'r Mem. in Supp. at 9-11.) Igbinoba admitted that the fingerprints on the driver's license in Edowany's name were Igbinoba's. (2 R.R. at 132-36.) An independent fingerprint expert would not have helped Igbinoba in light of his admission. Igbinoba fails to state what DPS officials and bank officials would have testified to that would have differed from the evidence introduced at trial. Counsel was not deficient.
H. Failure to Object to Indictments
Igbinoba asserts that counsel was ineffective for failing to object to the void indictments. (Pet'r Mem. in Supp. at 10; Pet'r Resp. at 13-17.) The indictments were sufficient to provide notice to Igbinoba of the charges and confer jurisdiction on the trial court. TEX. CODE CRIM. PROC. ANN. art. 21.02; TEX. PENAL CODE ANN. § 32.21 (Vernon Supp. 2004-05), § 34.02 (Vernon 2003); see Olurebi v. State, 870 S.W.2d 58, 62 (Tex.Crim.App. 1994) (stating indictment provides sufficient notice if it tracks the language of the statute); Warren, 98 S.W.3d at 741-42 (holding indictment variance of defendant's name did not deprive defendant of sufficient notice of charges). Thus, counsel was not deficient. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (holding failure to make a frivolous objection cannot equate to deficient performance), cert. denied, 525 U.S. 1174 (1999).
Igbinoba has failed to establish ineffective assistance as required by Strickland, and the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
IX. SUMMARY
Igbinoba is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Igbinoba 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.X. EVIDENTIARY HEARING
Upon review of the pleadings filed and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary. RULES GOVERNING SECTION 2254 CASES 8(a).
XI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the request for habeas corpus relief brought under 28 U.S.C. § 2254.