Opinion
CIVIL ACTION NO. 4:03-CV-0612-Y
September 29, 2003
FINDINGS, CONCLUSIONS. AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER (With Instructions to the Clerk of Court)
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 Nathan Elgia McCloud, TDCJ-LD #1022520, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently housed at Tennessee Colony, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In July 2000, McCloud was charged by indictment with aggravated robbery with a deadly weapon. (Clerk's R. at 3.) On May 8, 2000, attorney Gary Smart was appointed to represent McCloud in the trial court proceedings. (Id. at 8.) Thereafter, McCloud's jury trial commenced on January 9, 2001. The state's witnesses testified at trial that, on October 13, 1999, McCloud, Clarence Polk, and Alphonso Williams were riding in Polk's car when Williams noticed a new Yamaha motorcycle in front of the Bonehead Tattoo Parlor. (4Rep. R. at 8, 56.) Williams said he wanted the motorcycle and asked McCloud if he would get it for him. (Id. at 8.) McCloud agreed, and he got out of the car and approached the motorcycle and its owner, Frank Graham. (Id. at 11-12.) McCloud had a brief conversation with Graham and then pulled a gun out of his waistband. (Id. at 12-15, 5 7-5 8.) McCloud got on the bike behind Graham and told Graham to take him behind the building. (Id. at 59.) Instead, Graham put his hands up and told McCloud to just take the bike. (Id. at 60-62.) McCloud took the keys out of the ignition and got off the bike. (Id. at 62.) He told Graham that he was going to shoot when he got to the corner of the building. (Id.) Graham began pushing the bike down the street, at which point he saw McCloud "going for his waist" and heard him fire a shot. (Id. at 13-14, 42-47, 62-64.) Graham abandoned the motorcycle and ran away on foot. (Id. at 31-33, 43, 45, 62-64.) McCloud took the motorcycle to an apartment complex and covered it up. (4Rep. R. at 18.) The motorcycle was later seen at Williams's brother's house.
Williams was the only witness for the defense. He denied that the three had stopped at the Bonehead Tattoo Parlor on the date in question, that McCloud had taken the bike, or that the bike was ever at his brother's house. (Id. at 73-75.)
Based on the evidence, the jury found McCloud guilty of the offense and assessed his punishment at thirty years' confinement. (Clerk's R. at 58, 62, 67.) On March 28, 2002, the Second District Court of Appeals affirmed the trial court's judgment. McCloud v. State, No. 2-01-026-CR (Tex.App.-Fort Worth Mar. 28, 2002) (not designated for publication). McCloud did not seek further direct review. He did, however, file a state application for writ of habeas corpus, raising the ineffective assistance claims presented herein, which was denied without written order by the Texas Court of Criminal Appeals on April 30, 2003. Ex parte McCloud, No. 55, 731-01 (Tex.Crim.App. Apr. 30, 2003) (not designated for publication). McCloud filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on June 17, 2003. Dretke has filed an answer with supporting brief and documentary evidence, to which McCloud has replied.
See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing). McCloud does not indicate on his petition the date he placed the petition in the prison mailing system, however the envelope in which he mailed the petition reflects a postmark of June 17, 2003.
D. ISSUES
In one ground, McCloud alleges that he was denied effective assistance of counsel at trial because counsel filed to make a timely objection to improper impeachment of his sole defense witness and because counsel did not make an independent investigation of the facts and laws involved in his case. (Pet. at 7.)
E. RULE 5 STATEMENT
Dretke believes that McCloud has sufficiently exhausted his state remedies with regard to the claims presented as required by 28 U.S.C. § 2254(b) (c), and he does not move for dismissal on exhaustion grounds. (Resp't Answer at 2.)
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). Typically, 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. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Ineffective Assistance
McCloud asserts that he received ineffective assistance of counsel because his trial counsel, Gary Smart, failed to make a timely objection to improper impeachment of Williams and because counsel did not make an independent investigation of the facts and laws involved in his case. (Pet. at 7; Mem. 1-4.) A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST, amends. VI, XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington, 466 U.S. at 668. 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 but for counsel's deficient performance the result of the proceeding would have been different. Id. 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.
McCloud asserted his claims in his state writ application, however the state trial court, without conducting an evidentiary hearing, entered findings of fact and conclusions of law recommending that the writ be denied. (State Habeas R. at 21-24.) In turn, the Court of Criminal Appeals denied the writ without express findings of fact or written order. Ex parte McCloud, 55, 731-0l, at cover. As previously noted, this constitutes an adjudication on the merits by the Court of Criminal Appeals and is entitled to the presumption of correctness. See Neal, 286 F.3d at 235. In the absence of a written opinion or express findings of fact, a federal court may assume that the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied, and imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963); Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002); Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001).
McCloud has filed as an exhibit a copy of an order regarding an evidentiary hearing. (Pet'r Reply Ex. 2.) This order appears to have been prepared by the state in conjunction with its rely to McCloud's state writ application and is unsigned and undated. Having reviewed the record, it does not appear that the state trial court ever executed and issued the order or conducted an evidentiary hearing in the state writ proceedings.
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).
Moreover, where, as here, a petitioner's ineffective assistance claims have been reviewed on the merits by the state courts, we defer to the state courts' adjudication of the claims unless the state courts' decision was: (1) contrary to or involved an unreasonable application of Strickland, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence in the state court proceedings. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Pondexter v. Dretke, No. 02-41543, 2003 WL 22133295, at *2 (5th Cir. Sept. 16, 2003); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 537 U.S. 1054 (2002); Santellan v. Dretke, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002).
Applying these principles and having independently reviewed each of McCloud' s ineffective assistance claims in conjunction with the state court records, it does not appear that the state courts' application of Strickland's attorney-performance standard was objectively unreasonable. See Bell, 535 U.S. at 698. Moreover, McCloud's arguments fall short of satisfying the prejudice element of Strickland — i.e., that the result of his trial or his appeal would have been different had counsel's performance not been deficient in those respects.
As to the first claim, McCloud contends Smart failed to timely object to the prosecutor's cross-examination of Williams regarding two criminal charges allegedly pending against him in violation of Texas Rules of Evidence 608 and 609. (4Rep. R. at 78-79.) TEX. R. EVID. 608(b), 6O9(a). Apparently, Williams had two assault with bodily injury charges pending against him in Tarrant County shortly before McCloud's trial. (4Rep. R. at 79.) When questioned by the prosecutor about the charges, defense counsel did not immediately object. After finally raising an objection to improper impeachment, Williams stated on the record that the cases had been resolved the Tuesday before trial. (Id.) The trial court then overruled counsel's objection. (Id.) On appeal, the Second Court of Appeals concluded the claim was not preserved under the Texas "contemporaneous objection" rule, and the court refused to address the merits of the claim, In his state writ application, McCloud argued, as he does here, that counsel was ineffective by not raising a timely objection to the improper impeachment for purposes of preserving error.
Rule 608(b) provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
Rule 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs it prejudicial effect to a party.
Under Texas law, a party may not inquire into specific instances of a witness's misconduct to attack a witness's credibility. TEX. R. EVID. 608(b). Only previous criminal convictions for felonies or crimes of moral turpitude are admissible to impeach a witness. Id. 609(a). Thus, a witness may not be impeached by a pending charge. See Nethery v. Texas, 692 S.W.2d 686, 699 (Tex.Crim.App. 1985). However, there is some support that an exception to this rule exists that permits impeachment by pending charges to show bias, prejudice, or interest of the witness in testifying. See id. In the instant case, the complained of cross-examination arguably falls under the bias exception. The prosecutor specifically asked Williams: "Isn't it also true that you have pending charges that would make you biased against the State. . . ." (Id. at 78.)
Nevertheless, the record supports the conclusion that the charges were no longer pending at the time of McCloud's trial. (Id. at 79.) Assuming the charges against Williams were no longer pending, McCloud does not provide enough information about the convictions to permit a determination on the issue of admissibility under Rule 6O9(a). For example, he does not specify the details or nature of the assault charges or whether the charges resulted in misdemeanor or felony convictions. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b) (Vernon 2003). See also Jackson v. Texas, 50 S.W.3d 579, 592 (Tex.App.-Fort Worth 2001, pet. ref d) (providing misdemeanor assault by a male against a female is crime of moral turpitude). Thus, even if counsel's failure to preserve error was deficient performance, McCloud has not demonstrated that Williams' s assault convictions were inadmissible as a matter of state law, or that but for counsel's failure to timely object the result of his trial or his appeal would have been different.
In its findings, the state habeas court also found that McCloud did not "allege or cite authority that the objection would have been successful." (State Habeas R. at 22.)
As to the second claim, McCloud complains that Smart did not visit the scene of the crime or interview potential defense witnesses. There was no hearing on McCloud's state writ application, thus it is impossible to determine the extent of counsel's investigation into the facts and law relevant to his case. Nevertheless —
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.Strickland, 466 U.S. at 690-691.
McCloud's first complaint fails becasue he does not state what, if any, evidence a visit to the scene of the crime would have revealed or how it would have altered the outcome of his trial. See United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). His second complaint also fails. McCloud argues that counsel should have sought out and interviewed the police investigator, neighbors who reported to the investigator that they never saw McCloud in possession of the stolen motorcycle, the state's witnesses, and Williams's brother. Typically, such complaints are not favored in federal habeas corpus review because the presentation of witness testimony is essentially a matter of strategy, and thus within the trial counsel's domain. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983). In order for a petitioner to show the requisite Strickland prejudice, the petitioner must show that the witnesses were available and willing to testify at trial and that their testimony would have been favorable. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985); Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981). McCloud neither asserts nor demonstrates that the police investigator, his neighbors, or Williams's brother were available and willing to testify at his trial. Further, the fact that he was not seen by his neighbors with the stolen motorcycle does not necessarily benefit the defense. The evidence at trial indicated that immediately after the robbery McCloud secreted and abandoned the motorcycle at an apartment complex off Camp Bowie. (4Rep. R. at 15, 18.) The fact that he was not seen by his neighbors in possession of the stolen motorcycle does not disprove or contradict this evidence.
In summary, McCloud is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that he is not entitled to relief under Strickland does not appear to be contrary to or involve an unreasonable application of clearly established federal law or based on unreasonable determinations of fact in light of the evidence presented in the state court proceedings.
3. Request for Evidentiary Hearing
McCloud requests an evidentiary hearing regarding his ineffective assistance claims. In support of his request for a federal evidentiary hearing, he cites to Brown v. Johnson, 224 F.3d 461 (5th Cir. 2000). However, in contrast to Brown, here there are specific findings of fact by the state habeas court regarding the issues raised to which we must defer. Further, even if Brown were applicable, a petitioner must first present a facially adequate claim of ineffective assistance to be entitled to a federal evidentiary hearing. McCloud has failed to set forth such a claim in this action.
Furthermore, McCloud cannot satisfy the statutory requirements under § 2254(e)(2). His claims do not rely on a new rule of constitutional law or on a legal or factual basis that did not exist at the time of the state court proceedings. 28 U.S.C. § 2254(e)(2)(A)(i)-(ii); see also Williams v. Taylor, 529 U.S. 420, 435-36 (2000). It appears that McCloud received a full and fair adjudication of his claims at the state level, and the state's adjudication of the claims is supported by the record as a whole. Thus, an evidentiary hearing is not warranted.
II. RECOMMENDATION
McCloud'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 October 20, 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)(I). 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 October 20, 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.