Opinion
Civil Action No. 4:00-CV-416-A
June 17, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
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 John Kurt Ludwig, TDCJ-ID #785494, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Wynne Unit in Huntsville, Texas. He is represented by counsel in this action.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In August 1994 in an apparent attempt to resolve a child-custody dispute, Ludwig stole a shotgun from his mothers house and took it to his estranged wife's apartment where he shot open her apartment door. (4 Statement of Facts 194-95, 230.) After fighting with two men who were also in his wife's apartment, Ludwig heeded his wife's pleas and left the apartment. (Id. at 72-73, 184-85.) On April 17, 1997, a jury found Ludwig guilty of burglary of a habitation with intent to commit murder or aggravated assault and assessed punishment at 30 years' confinement. (State Habeas R. at 108, 111.)
The Second District Court of Appeals affirmed the judgment, and the Texas Court of Criminal Appeals denied Ludwig's petition for discretionary review. Ludwig v. State, 969 S.W.2d 22 (Tex.App. — Fort Worth 1998, pet. ref'd). On November 29, 1999, Ludwig's trial counsel, Charles Baldwin, died. Nine days later, Ludwig filed a state application for writ of habeas corpus and argued, among other issues, that Baldwin had been constitutionally ineffective. (State Habeas R. at 4-22, 30.) The trial court recommended that habeas relief be denied, specifically finding that Ludwig's ineffective-assistance-of-counsel claims were barred by laches because Ludwig filed his application 14 months after his conviction became final, which made it impossible to determine Baldwin's motivations during trial. (Id. at 104, 107.) The Texas Court of Criminal Appeals denied the application without written order. Ex parte Ludwig, No. 44,214-01 (Tex.Crim.App. Apr. 5, 2000) (not designated for publication).
Ludwig 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 11, 2000. On January 4, 2001, the undersigned entered Findings, Conclusions, and Recommendation, which recommended that Ludwig's petition be denied. Regarding Ludwig's claims of ineffective assistance of counsel, the undersigned found that they were procedurally barred and, alternatively, that he had not established the requisite deficient performance or prejudice to obtain relief on the merits. (R. on Appeal at 181-91.) On February 3, 2001, the District Court, after considering Cockrell's and Ludwig's objections, denied Ludwig's petition. The District Court held that the ineffective-assistance-of-counsel claims had been procedurally defaulted, but "additionally" addressed the merits of four of Ludwig's six claims regarding Baldwin and found no merit to those allegations. (Id. at 225-26.) After granting Ludwig a certificate of appealability on the procedural-bar holding (Docket Entry #34), the Fifth Circuit Court of Appeals vacated and remanded Ludwig's claims of ineffective assistance of counsel because laches was not an adequate state ground precluding federal review of the merits and because this court did not address the merits of the claims. Ludwig v. Cockrell, No. 01-10361 (5th Cir. Apr. 15, 2002).
Although Ludwig initially filed his federal petition in the United States District Court for the Southern District of Texas, Houston Division, the petition was transferred to this court. 28 U.S.C. § 2241 (d).
D. ISSUES
Ludwig argues counsel was constitutionally ineffective:
1. when he failed to seek to suppress a note Ludwig wrote on the day of the offense,
2. by not requesting a jury instruction on the lesser included offense of aggravated assault with a deadly weapon,
3. by failing to have the physical evidence tested to support his theory that he lacked the requisite intent,
4. when he did not challenge a venire member who could not consider the minimum punishment,
5. by not asking the venire members whether they knew about the case, knew any of the witnesses, or lived in Ludwig's wife's apartment complex, and
In addition to his claims of ineffective assistance of counsel, Ludwig also argues that improper witness testimony was introduced at trial in violation of due process and that the prosecutor gave an improper closing argument to the jury. However, this court previously addressed these two issues and found them meritless. The Fifth Circuit Court of Appeals did not grant a certificate of appealability on these issues. Thus, this court will not address them again. However, this court reaffirms its previous findings and conclusions regarding these two claims. (R. on Appeal at 192-97.)
6. based on the cumulative effect of his errors.
E. RULE 5 STATEMENT
Cockrell believes Ludwig has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
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).
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. 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.
Ludwig's complaints about Baldwin 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 courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d). For the following reasons, Ludwig has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Ludwig first asserts that Baldwin was ineffective for failing to suppress a note Ludwig wrote on the day of the offense. After stealing the shotgun from his mother's house, Ludwig returned home and wrote a note:
I am not crazy!
[My wife], deserves what happens to her!
[My daughter] goes to my mom Sara N. Kjos.
P.S. My tools go to Bill Adams and everything else. JKL (6 Statement of Facts at State Ex. 9.)
Ludwig put the note on his bedroom dresser before driving to his wife's apartment. (4 Statement of Facts 86.) Ludwig's wife found the note approximately six weeks after the offense when she went to Ludwig's apartment to get some of their daughter's clothes. (Id. at 86, 89.) Ludwig's wife kept the note, but finally gave it to prosecutors the week before trial. (Id. at 85.) Ludwig argues in this court that the note was inadmissible because Ludwig's wife committed either theft or criminal trespass in getting the note. (R. on Appeal at 13-14.) See TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp. 2002) (providing that no evidence obtained by any person in violation of the law shall be admitted into evidence).
On appeal, Ludwig argued that the trial court erred by allowing the note to be admitted into evidence. (Appellant Br. at 5.) The intermediate court of appeals held, in the alternative, that article 38.23 did not bar admission of the note because the evidence did not show that Ludwig's wife committed either trespass or theft in retrieving the note. Ludwig, 969 S.W.2d at 27. This court is bound by the state courts' interpretation and application of its own laws. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1993). Given that the state appellate court determined that article 38.23 did not bar admission of the note, Baldwin cannot be held deficient for failing to make a futile objection. 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) (holding counsel not deficient for failing to make meritless argument).
Ludwig next argues that Baldwin was ineffective for failing to request a jury instruction on the lesser included offense of aggravated assault with deadly weapon. (R. on Appeal at 16.) However, aggravated assault is not a lesser included offense of burglary with intent to commit aggravated assault because evidence showing a completed aggravated assault is not part of the facts legally required to show burglary with intent to commit aggravated assault. Jacob v. State, 892 S.W.2d 905, 909 (Tex.Crim.App. 1995). A request for an instruction on aggravated assault with a deadly weapon would have been inappropriate; thus, Baldwin cannot be held ineffective for failing to raise the issue. See, e.g., Lauti, 102 F.3d at 170.
Ludwig's next complaint is that Baldwin should have tested the door and doorknob of Ludwig's wife's apartment to support his theory that he lacked the requisite intent. Specifically, Ludwig asserts that such testing would have shown that he shot at a downward angle and without the intent to harm or kill anyone when he entered the apartment. (Id. at 19-20.) Even if Baldwin had obtained the services of a forensics expert to confirm that the shotgun pattern supported Ludwig's testimony regarding his lack of intent, Ludwig fails to create a reasonable probability that the outcome of this trial could have been different. Given the note, Ludwig's possession of a loaded shotgun with additional shells in his pocket, and the circumstances of his entrance and behavior in the apartment, the angle of the two shots he fired to gain access to the apartment do not serve to undermine confidence in the jury's verdict that he committed burglary with intent to commit murder or with intent to commit aggravated assault.
Ludwig alleges that Baldwin should have challenged venire member Isaac for cause after she stated that she would be unable to consider probation for someone convicted of burglary with intent to commit murder. (Id. at 21-22.) However, Isaacs indicated that she was otherwise able to consider the full range of punishment. (3 Statement of Facts at 126.) She and the remaining members of the jury assessed a sentence of 30 years' imprisonment, which is in the lower to middle of the range of punishment available as defined in the court's charge. (Tr. at 64.) This assessment exceeds the 10-year maximum period beyond which an individual is not eligible for probation consideration. See generally TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(1) (Vernon Supp. 2002). Thus, Ludwig has failed to establish prejudice under Strickland.
Ludwig also fails to show prejudice relating to his complaint that Baldwin should have asked the jury panel about their prior knowledge of the case or witnesses or whether any of the prospective jurors had lived in the same apartment complex where the burglary occurred. Ludwig asserts that Isaacs was the subject of criminal charges two months after she was a juror in his trial and that her address at that time was listed as the same apartment complex in which Ludwig's wife lived. Ludwig surmises that Isaacs might have been familiar with the incident. (R. on Appeal at 23-24.) However, there is no evidence to suggest that Isaacs possessed a bias against Ludwig merely because of her proximity to Ludwig's wife's apartment or that she otherwise had information about the offense that would render her unable to serve. E.g., Simms v. State, 848 S.W.2d 754, 757 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). At trial, Ludwig confessed to possessing and discharging a shotgun, breaking into the apartment, and threatening its occupants. (4 Statement of Facts at 182-87.) Isaacs's presumed residency in the same complex as the site of the offense is insufficient to undermine confidence in the jury's verdict. See Clark v. Collins, 19 F.3d 959, 965 (5th Cir.), cert. denied, 513 U.S. 966 (1994).
Finally, Ludwig argues that Baldwin should be held constitutionally ineffective based on the cumulative effect of his errors. (R. on Appeal at 28.) Federal 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 petition may not just complain of unfavorable rulings or events in an effort to cumulate errors. Id. at 1458. As noted above, Ludwig'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, Ludwig has presented nothing to cumulate. Livingston v. Johnson, 197 F.3d 297, 309 (5th Cir.), cert. denied, 522 U.S. 880 (1997).
3. Summary
In sum, Ludwig is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Ludwig 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.
II. RECOMMENDATION
Ludwig'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until July 8, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); 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 July 8, 2002 to serve and file, not merely place in the mail, 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.