Opinion
CIVIL ACTION NO. 4:03-CV-349-A
September 9, 2003
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS 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 Cortez Jackson, TDCJ-ID #911382, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Ellis Unit in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
On February 18, 1997, Thomas Shepherd was driving when Jackson's car sped past Shepherd, almost crashing into another car and cutting in front of him. (3 Rep. R. at 61-63, 153, 178.) Shepherd saw Jackson run two red lights, turn, and disappear. (Id. at 64.) Shepard saw Jackson filling his car with gas when Shepherd pulled into a gas station a short time later. (Id. at 64-65.) Jackson left the gas station by driving his car over the curb and down a bank of grass to the street without paying for the gas. (Id. at 65; 4 Rep. R. at 31, 50-51.) Shepherd left the gas station and again saw Jackson's car stopped in the middle of the street. (3 Rep. R. at 66-67, 83-84.) After Jackson drove off, Shepherd called the police to report Jackson's erratic driving. (Id. at 67.) Shepherd followed Jackson while talking to the police on his cell phone and saw Jackson drive in excess of 100 miles per hour and cut off a tractor-trailer. Jackson then ran another red light before hitting and killing James Woods. (Id. at 72-73, 102-07, 120.) Jackson was taken to the hospital where it was determined that he had cocaine in his system. (Id. at 156-62, 173-74, 184-89, 193, 201-05.)
The State indicted Jackson under a single indictment with intoxication manslaughter and manslaughter. (1 State Habeas R. at 36.) At the close of the evidence, the State dismissed the manslaughter charge and proceeded only with the intoxication-manslaughter charge. (4 Rep. R. at 75-76.) On January 27, 2000, a jury found Jackson guilty of intoxication manslaughter and assessed his punishment at 60 years' confinement. (1 State Habeas R. at 38.) Jackson appealed. The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Jackson's and the State's petitions for discretionary review. Jackson v. State, 50 S.W.3d 579 (Tex.App.-Fort Worth 2001, pets. ref'd).
In his petition, Jackson argued that the trial court erred by allowing into evidence testimony from the State's expert witness, allowing the impeachment of Jackson's testimony with an old conviction, failing to instruct the jury on the law of necessity, and failing to instruct the jury on the law of negligent homicide. (Appellant's PDR at 5, 7, 9-10.)
Jackson filed a state application for writ of habeas corpus and argued that the State wrongfully destroyed exculpatory evidence, no evidence supported the conviction, the conviction was obtained by use of evidence gathered through an unlawful search and seizure, and trial and appellate counsel were ineffective by mishandling the issue of the State's impeachment of Jackson's testimony. (Id. at 7-8.) The Court of Criminal Appeals denied Jackson's application without written order. Ex parte Jackson, No. 54, 412-01 (Tex.Crim.App. Jan. 15, 2003) (not designated for publication). The Court of Criminal Appeals dismissed Jackson's second and third state habeas applications as successive and, thus, abusive writs. Ex parte Jackson, Nos. 54, 412-02 — 03 (Tex.Crim.App. Apr. 2, 2003) (not designated for publication); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2003). Jackson filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 17, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
Although Jackson initially filed his federal petition in the United States District Court for the Northern District of Texas, Dallas Division, the petition was transferred to this division. 28 U.S.C. § 2241(d).
D. ISSUES
Jackson raises five issues:
1. Although he is guilty of involuntary manslaughter, he is actually innocent of intoxication manslaughter.
2. Trial counsel was constitutionally ineffective for failing to request an accomplice witness jury instruction.
3. He was denied the right to the assistance of an expert to review the evidence of his intoxication level.
4. The State suppressed exculpatory evidence.
5. Jackson's blood sample was taken in violation of the Fourth Amendment.
E. RULE 5 STATEMENT
Dretke argues that Jackson's first four claims, as listed above, have not been properly exhausted and asserts that they have been procedurally defaulted; however, Dretke believes that Jackson's remaining allegation has been properly exhausted.F. DISCUSSION
1. Legal Standard for Granting Habeas Corpus Relief
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), 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).
2. Actual Innocence
Jackson argues that, although he is guilty of involuntary manslaughter, he is actually innocent of intoxication manslaughter. In other words, Jackson believes he should not have been charged with intoxication manslaughter. (Pet'r Mem. of Law at 2.) He bases his argument on the fact that Shepherd was the cause of the accident because he was chasing Jackson, and Jackson was "running for his life" when he hit and killed Woods. (Federal Pet. at 7 7-1.)
Although Jackson argues that he is guilty of involuntary manslaughter, this offense was merged with voluntary manslaughter in the Penal Code to form one offense: manslaughter. Burke v. State, 80 S.W.3d 82, 90 (Tex.App.-Fort Worth 2002, no pet.). This court will assume that Jackson is actually asserting that he should have been charged with criminally negligent homicide, which is similar to the argument he made in the state intermediate court of appeals. (Appellant Am. Br. at 17-18.)
Dretke argues that because the Court of Criminal Appeals denied Jackson's claim without written order, it can be assumed that it did so on the procedural grounds raised by the State in its response to Jackson's first state habeas application. (Resp't Answer at 8-9.) See Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1988) (holding evidentiary sufficiency claims not cognizable in post-conviction, collateral attack); Ex parte Williams, 703 S.W.2d 674, 677 (Tex.Crim.App. 1986) (same). By denying Jackson's application "without written order," the Court of Criminal Appeals did not clearly and expressly deny Jackson's claim on an independent and adequate state procedural ground, which would render the claim procedurally barred in federal court. To prohibit a federal court's collateral review, the state court must have expressly relied on the procedural default as the basis for disposing of the claim. Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999). Here, neither the trial court (1 State Habeas R. at 35) nor the Court of Criminal Appeals mentioned procedural default as a basis for denying the claim. Cf. West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996) (holding sufficiency claim procedurally barred after state habeas trial court expressly held claim was procedurally defaulted and the Court of Criminal Appeals denied without comment), cert. denied, 520 U.S. 1242 (1997); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994) (same). Thus, it would be inappropriate to apply a procedural bar in this case. Cf. Bledsue, 188 F.3d at 256-57 (holding claim not procedurally barred when last state court to render a reasoned decision addressed the merits).
As stated above, Jackson asserts that he is actually innocent of intoxication manslaughter. 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 (1993); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995). However, this exception does not apply to "freestanding" actual-innocence claims, but only applies when actual innocence supplements an otherwise barred constitutional claim. Herrera, 506 U.S. at 404-05; Lucas, 132 F.3d at 1074-75. An independent actual-innocence claim is properly raised in either the state habeas process, as Jackson did in this case, or in the executive clemency process. Robinson v. Johnson, 151 F.3d 256, 267 n. 7 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir.) cert. dismissed, 524 U.S. 965 (1998). (State Habeas R. at 5-8.) Jackson's actual-innocence claim is not cognizable.
Further, the evidence Jackson argues shows his actual innocence is not newly discovered (Federal Pet. at 7 7-1; 3 Rep. R. at 78-98); thus, this court will not second-guess the jury's determination based on evidence that was presented at trial. Dowthitt v. Johnson, 230 F.3d 733, 742-43 (5th Cir. 2000), cert. denied, 121 S.Ct. 1250 (2001). Accordingly, the state courts' determination that Jackson 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.
3. Procedural Default
Jackson next argues that (1) trial counsel was constitutionally ineffective because he did not seek a jury instruction on accomplice-witness testimony, (2) the trial court denied him the right to have an expert to help prepare his defense, and (3) the State suppressed exculpatory evidence. (Federal Pet. at 7-1, 7-2, 7-3, 8, 8-1.) Jackson did not raise these claims in his petition for discretionary review or his first state habeas application. The first time he raised these assertions was in his second and third state habeas applications, which were dismissed as successive and, thus, abusive applications. (2 State Habeas R. at 7-10; 3 State Habeas R. at 7-10.)Federal review of a claim is procedurally barred if the last state court to consider the claim clearly based its denial of relief on procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Coleman v. Thompson, 501 U.S. 722, 729 (1991). 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, 501 U.S. at 750; Finley v. Johnson, 243 F.3d 215, 219-20 (5th Cir. 2001).
Jackson argues that his second state habeas application was actually a supplement to his first application and should not have been considered as a separate collateral attack. (Pet'r Rebuttal at 2; 2 State Habeas R. at 4.) However, Jackson filed his "supplement" on a separate habeas application form and he filed it almost a month after his first habeas application had been denied. (2 State Habeas R. at 2.) This claim is procedurally barred based on the Court of Criminal Appeals' express holding that Jackson's second filing was procedurally defaulted under the abuse-of-the-writ doctrine.
Even if Jackson's second filing should have been considered a supplement, the claims raised therein would be unexhausted and, thus, procedurally barred because they were filed too late to be considered by the habeas courts. Castille v. Peoples, 489 U.S. 346, 351 (1989); Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995).
Jackson further asserts that his actual innocence and his counsel's ineffectiveness constitute cause to excuse the procedural default of these claims. (Federal Pet. at 7; Pet'r Mem. of Law at 2-3; Pet'r Rebuttal at 6, 10-11, 13, 16.) Regarding his procedural claim of actual innocence, Jackson has neither supported his allegation with new, reliable evidence that was not presented at trial nor shown that a reasonable juror would not have convicted him in light of the new evidence. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999).
This miscarriage-of-justice argument is necessarily a procedural claim of actual innocence. Schlup v. Delo, 513 U.S. 298, 314 (1995). In other words, this claim of innocence is not an independent constitutional claim, but is a "gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, 506 U.S. 390, 404 (1993). Jackson must support his miscarriage-of-justice claim with new evidence of his actual innocence. Schlup, 513 U.S. at 316, 324, 329-30.
Jackson's conclusory allegation of innocence is insufficient. E.g., Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Further, Jackson's position seems to be that there were mitigating circumstances that warranted a lesser charge. In other words, he is not arguing that he is actually innocent. Schlup, 513 U.S. at 327; see also Dowthitt v. Johnson, 180 F. Supp.2d 832, 849 (S.D. Tex.), certificate of appealability denied, 230 F.3d 733 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001).
lndeed, Jackson states that he "does not challenge the guilt of his conviction." (Federal Pet. at 7.)
Jackson's ineffective-assistance-of-counsel claim is also unavailing to excuse his procedural default of these claims. He asserts that counsel was ineffective for failing to properly present evidence that Shepherd had a previous, fractious relationship with Jackson and that Shepherd's actions in chasing Jackson were the actual cause of Woods's death. (Federal Pet. at 7; Pet'r Rebuttal at 10-11.) Although ineffective assistance of counsel can constitute cause to excuse a procedural default, the exhaustion doctrine requires that a claim of ineffective assistance be properly presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Jackson did not argue in either his petition for discretionary review or in his first state habeas application that counsel was ineffective in his presentation of Jackson's defense regarding Shepherd's involvement in the offense; thus, it cannot be used to excuse the procedural default.
Accordingly, these claims are procedurally defaulted. 28 U.S.C. § 2254(b)(2).
4. Fourth Amendment
Jackson also argues that his conviction was unconstitutional because intoxication evidence against him was obtained in violation of the Fourth Amendment. Federal courts have no authority to review a state court's application of Fourth-Amendment principles in habeas corpus proceedings unless the petitioner was denied a full and fair opportunity to litigate his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). The trial court conducted a pretrial hearing on Jackson's motion to suppress the blood evidence and denied the motion. (Clerk R. at 22; 3 Rep. R. at 8-42.) This claim was also raised in Jackson's first state habeas corpus application. (1 State Habeas R. at 7-8.) Because Jackson was provided 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, 123 S.Ct. 1264 (2003).
5. Summary
In sum, Jackson is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Jackson 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.
G. EVIDENTIARY HEARING REQUEST
Jackson requests that this court hold an evidentiary hearing on his claims. (Pet'r Rebuttal at 18.) A court shall not conduct an evidentiary hearing unless the petitioner failed to develop a claim in state court, provided that the claim relies on a new rule of constitutional law or on "a factual predicate that could not have been previously discovered through the exercise of due diligence" and the facts would "establish by clear and convincing evidence" the petitioner's actual innocence. 28 U.S.C. § 2254(e)(2); see also RULES GOVERNING SECTION 2254 CASES 8(a). Jackson has failed to satisfy the statutory requirements. He has not demonstrated the existence of any factual disputes that warrant a federal evidentiary hearing.
II. RECOMMENDATION
Jackson's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until September 30, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 30, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.