Opinion
No. 3:03-CV-459-R.
September 28, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Gregory Bernard Medford is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
After Medford violated his bond by failing to appear in court, a private investigator, Mike Armstrong, began searching for Medford. (3 R.R at 39-41.) On August 3, 1999, Armstrong saw Medford drive up to a house and alerted police. ( Id. at 41-42.) The police officers towed Medford's car because it was parked in front of a fire hydrant. ( Id. at 69-70.) Before it was towed, the officers searched the car and found a gun and a bag of crack cocaine beneath the center console. ( Id. at 119-20.) After placing Medford under arrest, they also found he was carrying $2,227 in cash. ( Id. at 75.)
Medford was indicted in separate indictments for unlawful possession of a firearm by a felon and possession with intent to deliver 4 grams or more but less than 200 grams of cocaine. (51075 C.R. at 2; 51076 C.R. at 2.) After a consolidated trial, a jury found Medford guilty of both offenses and assessed his punishment at 10 years' confinement on the gun violation and 60 years' confinement on the drug-possession charge, to be served concurrently. (51075 C.R. at 33; 51076 C.R. at 19.) The Fifth District Court of Appeals affirmed the trial court's judgments, and the Texas Court of Criminal Appeals refused Medford's pro se petitions for discretionary review on October 31, 2001. Medford v. State, Nos. 5-00-096 097-CR (Tex.App.-Dallas Apr. 5, 2001, pets. ref'd) (not designated for publication).
Medford filed two state applications for habeas corpus relief, challenging his convictions, which the Court of Criminal Appeals denied without written order. Ex parte Medford, Nos. 54,587-01 -02 (Tex.Crim.App. Jan. 29, 2003) (not designated for publication). Medford filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on February 17, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
Issues
Medford raises four issues:
1. His conviction was the result of an unconstitutional search and seizure.
2. The State engaged in prosecutorial misconduct.
3. Trial counsel was constitutionally ineffective.
4. Appellate counsel was constitutionally ineffective.
Exhaustion of State Court Remedies
Dretke argues that Medford's claim that appellate counsel was ineffective has not been properly exhausted and asserts that it has been procedurally defaulted; however, Dretke believes that Medford's remaining allegations have been properly exhausted.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).
Fourth Amendment
Medford argues that his conviction was unconstitutional because the 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 Medford's motion to suppress and denied the motion. (51075 C.R. at 14; 3 R.R. at 4-20.) Because Medford 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, 537 U.S. 1196 (2003).
Prosecutorial Misconduct
Medford argues that the State committed prosecutorial misconduct when, during closing jury arguments at punishment, the State argued that the jury should be the voice of the community and argued facts not in evidence. To merit habeas corpus relief, prosecutorial misconduct must have infected the trial with unfairness so as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987). In other words, the conduct must have rendered the trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 179-81 (1986). A trial will be deemed fundamentally unfair only in the most egregious situations and only if there is a reasonable probability that the verdict might have been different had the trial been properly conducted. Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000), cert. denied, 531 U.S. 1134 (2001); Ortega v. McCotter, 808 F.2d 406, 410-11 (5th Cir. 1987).
Medford first complains of the State's jury argument urging the jury to send a message to the community:
We listen to juries. You may not realize this. But the decision you make doesn't just go to this individual. The decision you make will go out of this courtroom, through those doors, down the hall and around the courthouse because you're going to tell us what does the — what do the people think a case of guns and drugs is worth? How much does it mean to you, someone's driving around Dallas County with laser guns and with $50 rocks in their car to sell to poison people of Dallas County. Tell us that. Tell the people of Dallas County that. And tell [Medford] you don't want him on our streets with his guns and drugs anymore. (6 R.R. at 14.)
In Texas, proper jury argument includes: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992), cert. denied, 510 U.S. 829 (1993). The State's community-impact argument was a proper plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55-56 (Tex.Crim.App. 1990).
Second, Medford asserts that the State committed misconduct when it referred to his extraneous offenses:
Do you remember saying you could consider the full range of punishment in this offense? Fifteen is the minimum. This a minimum case? Minimum is one trip to the penitentiary. He went to the penitentiary two cases and a revocation. He's out two years — within two years, he's driving around Dallas County with his laser gun. One more year, out on bond, jumps bond. One more year, he's out in Dallas County again with $50 rocks and another gun in his car and a lot of money in his pocket. ( Id. at 13.)
During trial, the State introduced evidence of these extraneous offenses. ( Id. at State Exs. 1, 2, 9, 13; 3 R.R. at 154-58; 5 R.R. at 5-25.) Thus, the State's argument was a summation of and reasonable deduction drawn from evidence introduced at trial. Thus, the State's jury arguments were proper and cannot support an allegation that they rendered Medford's trial fundamentally unfair.
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.
Medford's complaints about trial counsel were reviewed and rejected during state collateral review proceedings and on direct appeal. 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).
Trial Counsel
Medford asserts that trial counsel was constitutionally ineffective when he:
1. did not request a severance;
2. did not object to the introduction of extraneous-offense evidence;
3. failed to object to the admission of evidence regarding the arrest warrants;
4. failed to request a limiting instruction directed at the extraneous-offense evidence;
5. did not object to the State's jury argument that the jury should be the voice of the community; and
6. failed to object to the State's argument referring to evidence that was outside the record.
Medford first asserts that trial counsel was constitutionally ineffective because he did not seek to sever the two counts into separate trials. Under Texas law, Medford had no absolute right to a severance. TEX. PENAL CODE ANN. § 3.04(c) (Vernon 2003). In fact, had counsel moved for a severance and made the requisite showing of unfair prejudice, Medford's sentences could have been imposed to run consecutively. Id. § 3.04(b). Thus, Medford has failed to show that counsel's failure to move for a severance was not the result of a reasoned trial strategy. Rogers v. State, 85 S.W.3d 359, 360-61 (Tex.App.-Texarkana 2002, no pet.).
Medford also argues counsel should have objected to the admission of extraneous-offense evidence and to evidence of the outstanding warrants. The record shows that counsel objected to both the warrants and evidence of the offenses alleged in the warrant. (3 R.R. at 67, 112-13.) Counsel was not deficient. See Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983).
Medford next asserts that counsel was ineffective for failing to request a limiting instruction in the jury charge regarding the extraneous offenses and warrants. The state appellate courts concluded that Medford could not show Strickland prejudice because "[i]n the face of [the] overwhelming evidence of [Medford's] guilt of both offenses, we conclude there is not a reasonable probability that counsel's failure to request the limiting instructions affected the outcome of the cases." Medford, Nos. 05-00-096 097-CR, slip op. at 6. This prior adjudication did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. See, e.g., Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002) (holding prejudice prong not met when evidence established petitioner's guilt), cert. denied, 538 U.S. 1001 (2003); Creel v. Johnson, 162 F.3d 385, 396 (5th Cir. 1998) (same), cert. denied, 526 U.S. 1148 (1999).
Medford's final two arguments directed at trial counsel's performance raise the contention that the State improperly argued to the jury that it was the voice of the community and argued outside the record. As discussed above, these arguments were proper; thus, counsel had no basis to object and cannot be held 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).
Appellate Counsel
Medford also argues that appellate counsel was constitutionally ineffective because he failed to argue on appeal that the State's community-impact and outside-the-record jury arguments were improper. 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).
Although Medford argued in his state habeas applications that appellate counsel was ineffective, he based his contention on the fact that appellate counsel did not challenge the illegal search and seizure. (1 State Habeas R. at 28; 2 State Habeas R. at 28.) Medford did not raise in either his petitions for discretionary review or his state habeas corpus applications his argument that appellate counsel was ineffective for failing to attack the State's jury arguments. Thus, he 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).
However, Medford 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.
Medford has not given any explanation to excuse his default. Indeed, any problems with appellate counsel's representation were known to Medford before he filed his state habeas corpus applications. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, this claim is procedurally defaulted.
Summary
Medford is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts determination that Medford 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.