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In Madison where "[t]he officer was aware of the informant's tip that Madison was possibly driving while intoxicated" coupled with his own observation of the car, "this was sufficient to establish reasonable suspicion, based on articulable facts, to believe that Madison was driving the motor vehicle while intoxicated."
Summary of this case from United States v. ColemanOpinion
CIVIL ACTION NO. 4:03-CV-008-Y
May 29, 2003
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 pursuant to the provisions of 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 Jerry Wayne Madison, TDCJ-ID #933219, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Palestine, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 1999, Madison was charged by indictment in state court with the felony offense of driving while intoxicated (DWI). (Clerk's R. at 3.) The indictment also included enhancement and habitual offender allegations. (Id.) On June 30, 2000, after a jury found him guilty of the charged offense, Madison entered a plea of true to the enhancement and habitual paragraphs, and the court assessed his punishment at thirty years' confinement. (Id. at 60.) Madison appealed his conviction, but the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on June 28, 2001. Madison v. State, No. 2-00-261-CR (Tex.App. — Fort Worth June 28, 2001). On January 9, 2002, the Texas Court of Criminal Appeals refused Madison's petition for discretionary review. Madison v. State, PDR No. 2017-01. Subsequently, Madison filed a state application for writ of habeas corpus, which was denied without written order on November 27, 2002. Ex parte Madison, No. 54,177-01, at cover (Tex.Crim.App. Nov. 27, 2002). He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 30, 2002. 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).
D. ISSUES
By way of this petition, Madison raises the following three grounds for relief:
(1) He was denied effective assistance of counsel;
(2) Void convictions were used for enhancement purposes; and
(3) The trial court erred by denying his requested jury charge on probable cause. (Pet. at 7.)
F. RULE 5 STATEMENT
Cockrell believes that Madison has sufficiently exhausted his state remedies on the issues presented and, thus, does not move for dismissal on exhaustion grounds. (Resp't Answer at 3.) 28 U.S.C. § 2254 (b)-(c).F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless 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 Supreme Court of the United States 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 federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. 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 the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). 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
Under his first ground, Madison contends his trial counsel was ineffective by failing to investigate the validity of two prior convictions used for enhancement purposes. (Pet. at 7; Pet'r Mem. in Support at 1.) More specifically, he contends that his felony DWI convictions on September 17, 1993 in cause nos. 0429506D and 0481726 could not be used for enhancement purposes because he was "given eighteen months in Tarrant County Jail plus a one thousand dollar fine" for the offenses, which is an unauthorized sentence for a third degree felony. (Pet. at 7; Pet.'r Mem. in Support at 1-2.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688. To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688.
A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Where, as here, a petitioner's ineffective assistance claim has been reviewed on its merits and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of Strickland, or if the state courts' decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 123 S.Ct. 676 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 123 S.Ct. 625 (2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002).
If the state court does not make express findings of fact, a federal habeas court may imply fact-findings from the state court's disposition of a federal claim that turns on the factual issue. Townsend v. Sain, 372 U.S. 293, 314 (1963); Farmer v. Caldwell, 476 F.2d 22, 24 (5th Cir. 1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973). Further, if the state court does not articulate the constitutional standards applied, this court may assume that the state court applied correct standards of federal law to the facts in the absence of evidence that an incorrect standard was applied. Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001).
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254 (d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir. 1981).
Here, the Texas Court of Criminal Appeals considered and rejected Madison's ineffective assistance claim without a hearing and without making express findings of fact on the issue, and the record is devoid of any indication concerning the extent, if any, that Madison's trial counsel actually investigated his prior DWI convictions. Nevertheless, under the law as it existed at the time the offenses were committed, his sentences for the 1993 DWI convictions were within the applicable range of punishment for the offense. See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 18, 1983 Tex. Gen. Laws 1568, 1575-76 (formerly TEX. REV. CIV. STAT. ANN. art. 67011-1(d)). Thus, assuming the state court properly applied the Strickland standard to Madison's ineffective assistance claim, the state court's adjudication of the matter is reasonable when applied to the facts of his case.
3. Void Sentences
Under his second ground, Madison contends that the void convictions in cause nos. 0429506D and 0481726 were improperly used to elevate his current DWI to felony status under § 49.09 and to elevate him to habitual offender status under § 12.42 of the Texas Penal Code. TEX. PENAL CODE ANN. §§ 12.42(d), 49.09(b) (Vernon 2003). (Pet. at 7; Pet.'r Mem. in Support at 2.)
Section 12.42(d) of the Texas Penal Code provides:
(d) If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.
TEX. PENAL CODE ANN. § 12.42(d).
In pertinent part, § 49.09 of the Texas Penal Code provides:
(b) An offense under Section 49.04 (the DWI statute) . . . is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated . . .Id. § 49.09(b)(2).
However, as previously noted, the convictions were not void, as Madison alleges, on the basis that he was illegally sentenced for the offenses. Moreover, if prior convictions used to enhance a defendant's current sentence are no longer open to direct or collateral attack in their own right, either because the defendant failed to pursue those remedies while they were available or because he did so unsuccessfully, then he is without recourse and may not collaterally attack his prior convictions through a petition under § 2254. Lackawanna County Dist. Att'y. v. Coss, 532 U.S. 394, 402-04 (2001). When prior convictions that have been used to enhance a state sentence are no longer open to direct or collateral attack, the prior convictions may be regarded as conclusively valid. Id. at 403. Madison does not contest that his 1993 convictions are now closed to direct or collateral attack or that his sentences for the offenses have been fully discharged. As a general rule then they may be regarded as conclusively valid.
It is noted that the general rule is subject to at least one exception for cases in which a prior conviction is attacked on the basis that the defendant was denied counsel in violation of the Sixth Amendment. Id. at 404-05. In this instance, however, Madison was represented by counsel with respect to each of his 1993 convictions. (State Habeas R. at 16; 8Rep. R. at State's Ex. 11.) The established exception to the conclusive validity of the prior convictions thus has no applicability here. Other exceptions might also exist. The Supreme Court has specifically stated that, when the defendant cannot be faulted for failing to obtain timely review of a constitutional claim or when he obtains compelling evidence that he is actually innocent of the crime for which he was convicted that he could not have uncovered in a timely manner, habeas relief might be available despite the general rule precluding such relief. Id. at 405. Madison does not allege or demonstrate that he sought timely review of his 1993 convictions or that he was prevented through no fault of his own from obtaining timely review of the prior convictions. Nor does he allege that he is actually innocent of the DWI offenses for which he was convicted in 1993 or present newly discovered and compelling evidence that he is actually innocent of the offenses. Thus, he does not meet any of the potential exceptions to the general rule that his prior convictions are conclusively valid.
4. Probable Cause Instruction
Under his third ground, Madison contends the trial court erred by denying his request for a charge on probable cause regarding the legality of the traffic stop that led to his arrest for the instant DWI offense. (Pet. at 7; 5Rep. R. at 125.) Article 38.23 of the Texas Code of Criminal Procedure, the so-called Texas "exclusionary rule," provides, in relevant part:(a) No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp. 2003).
Thus, as a matter of state law, Madison was entitled to an article 38.23 instruction if the trial evidence raised a factual issue concerning whether evidence was obtained in violation of the United States Constitution, other federal law, the Texas Constitution, or other Texas law. See Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App. 1986). At trial, the testimony reflected that on August 21, 1999, at about 2:30 a.m., an employee of the Taco Bell in Haltom City reported a possible drunk driver in the drive-thru area of the restaurant and gave a description of Madison's white van. (4Rep. R. at 64.) Officer Joe Hatfeld received the dispatch and arrived at that location and observed Madison's van exit the drive-thru. ( Id. at 83-85.) He followed the van southbound on Denton Highway and saw Madison weaving within his lane of traffic, weaving once onto the single striped white line separating the two southbound lanes, and weaving twice onto the yellow center lines. ( Id. at 88-89, 136.) Because the van was failing to maintain a single lane of traffic, he became concerned for the safety of oncoming vehicles traveling in the opposite direction and initiated a traffic stop. ( Id. at 88-90.) In response, Madison turned on his left turn signal, weaved into the right-hand lane, and made a wide left-hand turn into a parking lot. ( Id.) In his defense, Madison admitted that he was weaving, but claimed it was because he was eating tacos while he was driving. (5Rep. R. at 29-30.)
Madison argues, as he did in state court, that he was entitled to an article 38.25 instruction because, although he was weaving within his own lane of traffic, there was no evidence that his movements were done in an unsafe manner in violation of § 545.060 of the Texas Transportation Code. TEX. TRANSP. CODE ANN. § 545.060(a) (Vernon 1999). The state court of appeals determined that Madison was not entitled to an instruction under 38.23 because, despite his reason, Madison did not contest that he was weaving. (State Habeas R. at 28-29.) Apparently, this fact in conjunction with the informant's tip satisfied the state courts that Officer Hatfeld had the requisite probable cause to believe that Madison had violated the statute, or, in the alternative, that the officer had reasonable suspicion to believe that Madison was driving the van while intoxicated, so as to justify the stop of Madison's van.
In pertinent part, § 545.060(a) provides:
(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and
(2) may not move from the lane unless that movement can be made safely.
TEX. TRANSP. CODE ANN. § 545.060(a)(1)-(2).
This decision does not appear to be contrary to, or involve an unreasonable application of, clearly established federal law, or to be based on an unreasonable determination of the facts in light of the evidence presented in the state court. Generally, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Delaware v. Prouse, 440 U.S. 648, 659 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977). Here, Officer Hatfeld stated that Madison failed to maintain a single lane of traffic and that he was concerned about the safety of oncoming vehicles. (4Rep. R. at 88-89.) Thus, the officer arguably had probable cause to believe that Madison had violated § 545.060 and that his behavior could affect the safety of other motorists. See Whren v. United States, 517 U.S. 806, 810 (1996); United States v. Santiago, 310 F.3d 336, 341 (5th Cir. 2002); Burton v. United States, 237 F.3d 490, 496 (5th Cir. 2000). Even if Officer Hatfeld's belief that Madison had violated § 545.060 were unreasonable, the stop was valid based on his reasonable suspicion that Madison was driving while intoxicated. (4Rep. R. at 90.) See United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975). A reasonable suspicion determination is based on the totality of the circumstances, and there is no requirement that a particular statute be violated in order to give rise to reasonable suspicion. See United States v. Sokolow, 490 U.S. 1, 9 (1989). The officer was aware of the informant's tip that Madison was possibly driving while intoxicated and he observed Madison weaving within his lane and onto the striped white lines to his right and the yellow center lines to his left. This was sufficient to establish reasonable suspicion, based on articulable facts, to believe that Madison was driving the motor vehicle while intoxicated. See United States v. Ramirez, 213 F. Supp.2d 722, 725 (S.D. Tex. 2002), aff'd, ___ F.3d ___, (5th Cir. Apr. 9, 2003) (Table No. 02-40702). The state trial court's refusal to include an article 38.23 instruction was therefore appropriate.
II. RECOMMENDATION
Madison'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 June 19, 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 op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 19, 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, a 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, be and hereby is returned to the docket of the United States District Judge.