Opinion
No. 4:02-CV-522-A
March 14, 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 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 Charles Allen Meyer, TDCJ-ID #875969, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Allred Unit in Iowa Park, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Meyer was indicted for two counts of sexual assault of a child under 17 with enhancement and habitual-offender notices. (I State Habeas R. at 15; 2 State Habeas R. at 15.) Meyer pleaded not guilty to the offenses and true to the enhancement and habitual-offender notices. (I State Habeas R. at 16; 2 State Habeas R. at 16.) On May 19, 1999, a jury found him guilty of both counts and assessed punishment at concurrent 40-year sentences. (1 State Habeas R. at 16; 2 State Habeas R. at 16.)
Meyer filed notices of appeal on May 21, 1999. (175 Clerk R. at 101; 176 Clerk R. at 109.) On June 25, 1999, Meyer filed two state applications for writ of habeas corpus, challenging each of his convictions, which the Texas Court of Criminal Appeals dismissed because his direct appeals were pending. Ex parte Meyer, Nos. 42, 229-01 -02 (Tex.Crim.App. Aug. 18, 1999) (not designated for publication). The Tenth District Court of Appeals affirmed the trial court's judgment, and the Court of Criminal Appeals refused his petition for discretionary review. Meyer v. State, 27 S.W.3d 644 (Tex.App.-Waco 2000, pet. ref'd). Meyer again filed two state applications for writ of habeas corpus challenging his convictions, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Meyer, Nos. 42, 229-03 -04 (Tex.Crim.App. Mar. 13, 2002) (not designated for publication). Meyer 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 June 12, 2002. 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).
Although Meyer initially filed his federal petition in the United States District Court for the Northern District of Texas, Wichita Falls Division, the petition was transferred to this division. 28 U.S.C. § 2241 (d).
D. ISSUES
Meyer raises two issues:
1. He was denied the right to a speedy trial under the Sixth Amendment.
2. Trial counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell believes Meyer 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), cert. denied, 123 S.Ct. 963 (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. Speedy Trial
Meyer was arrested for the offenses and confined on June 18, 1997. (175 Clerk R. at 4; 176 Clerk R. at 4.) The court appointed an attorney to represent him on July 3, 1997. (175 Clerk R. at 4; 176 Clerk R. at 4.) Between November 17, 1997 and September 8, 1998, Meyer's case was put on the trial docket five times, but was not reached. (175 Clerk R. at 4; 176 Clerk R. at 4.) On October 6, 1998, counsel filed a motion for speedy trial in each case, requesting a quick trial date setting. (175 Clerk R. at 37-38; 176 Clerk R. at 36-37.) Meyer's case was set for November 16, 1998, but again was not heard. (175 Clerk R. at 4; 176 Clerk R. at 4.) In early December 1998, Meyer wrote a letter to the court requesting a trial date, and the trial court wrote on the State's copy of the letter that he wanted the case "tried or disposed of ASAP." (175 Clerk R. at 40; 176 Clerk R. at 39.) On February 18, 1999, the trial court granted the speedy-trial motion and stated that the case would be specially set for the next week; however, Meyer's case again was not reached. (175 Clerk R. at 4; 176 Clerk R. at 4; 2 Rep. R. at 7.) On April 23, 1999, Meyer filed a pro se motion to dismiss the indictments based on the violation of his right to a speedy trial. (175 Clerk R. at 47; 176 Clerk R. at 46.) Meyer's trial began on May 18, 1999, and the trial court denied Meyer's pro se motion at that time. (3 Rep. R. at 1, 6.)
Meyer argues that he was denied his constitutional right to a speedy trial. The Sixth Amendment guarantees a defendant in a criminal case the right to a speedy trial. U.S. CONST. amend. VI; Barker v. Wingo, 407 U.S. 514, 519-22 (1972). Under Barker, a court must consider four factors in assessing a speedy-trial claim: (1) the length of the delay, (2) the reason for the delay, (3) when the defendant asserted the right, and (4) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530. The "triggering mechanism" for the inquiry is the length of the delay. Id. If the delay between the date of arrest or indictment and the date of trial is presumptively prejudicial, the court must make specific findings regarding the other three factors. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993), cert. denied, 510 U.S. 1167 (1994).
Meyer raised his speedy-trial claim on direct appeal and in his state habeas applications. The state intermediate appellate court extensively addressed the claim and held that (1) the length of delay was presumptively prejudicial to Meyer; (2) the reason for the delay was unexplained and, thus, weighed against the State; (3) Meyer timely and consistently asserted his speedy trial right, which weighed in his favor; and (4) Meyer did not make a prima facie showing that his defense was impaired by the delay, which weighed in the State's favor. Meyer, 27 S.W.3d at 649-51. The court of appeals, after balancing the Barker factors, concluded that Meyer's right to a speedy trial had not been violated. Id. at 651. In the present action, Meyer specifically argues that the state appellate court erred in holding that (1) he had the burden to make a prima facie showing of a violation (2) he did not make the requisite showing of prejudice, and (3) the applicable factors weighed in the State's favor. (Federal Pet. at 7; Pet'r Mem. at 2-9; Pet'r Reply at 2-4.)
Because the 23-month delay in Meyer's trial is presumptively prejudicial and weighs against the State, the other factors must be examined and balanced to determine if the Sixth Amendment was violated. Robinson, 2 F.3d at 568. As pointed out by the state appellate court, the record is silent regarding the reason for the delay; however, there is no evidence that the delay was a deliberate attempt by the state to hamper the defense. Thus, although the reason for the delay weighs against the State, it should be weighed less heavily than a deliberate delay. Barker, 407 U.S. at 531; see also Collins v. Cockrell, No. 4:02-CV-522-Y, 2002 WL 31415986, at *5 (N.D. Tex. Oct. 22, 2002). Meyer was zealous in pursuing his right to a speedy trial; thus, this factor weighs in his favor.
Any prejudice to Meyer must be assessed in light of his interest (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532. As noted by the state appellate court, Meyer asserted that he unduly suffered from the delay, which the State, and now Cockrell, did not contradict. (Pet'r Mem. at 3.) Meyer, 27 S.W.3d at 650. However, the most important consideration in the prejudice factor is whether Meyer's defense was impaired by the delay. Barker, 407 U.S. at 532. Meyer argues that his defense was impaired by the delay because four of his witnesses, who would have testified that the victim was forced to fabricate the charges against Meyer, moved out of state and were no longer available for trial. (Pet'r Mem. at 10; Pet'r Reply at 3-4.) Meyer's assertions are unsupported by any proof of the substance of the witnesses' potential testimony and are, thus, conclusory. As such, he cannot show that his defense was prejudiced. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (holding court cannot grant habeas relief unless petitioner makes offer of proof as to the content of missing evidence or testimony).
Accordingly, the state court of appeals' findings that the Barker factors, on balance, showed that Meyer was not denied the right to a speedy trial were reasonable determinations of the facts in light of the evidence presented in the state court proceeding. Further, the findings did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. United States v. Crosby, 713 F.2d 1066, 1078-79 (5th Cir.) (holding speedy-trial violation requires proof of actual, substantial prejudice or evidence of intentional, tactical delay by prosecution), cert. denied, 464 U.S. 1001 (1983).
3. Ineffective Assistance of Counsel
The Sixth Amendment additionally 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.
Meyer's complaints about counsel 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).
Meyer asserts that trial counsel were constitutionally ineffective because they:
1. did not consult with Meyer about the case;
2. did not review the State's file;
3. failed to conduct an independent investigation;
4. failed to investigate the scene of the crime;
5. did not investigate the State's witnesses;
6. did not review the enhancement paragraph of the indictment;
7. did not call defense witnesses Meyer requested; and
8. did not file a motion to dismiss the case based on the violation of his right to a speedy trial.
For the following reasons, Meyer 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.
Meyer argues that counsel were ineffective for failing to consult with him about the case. Length of time spent in consultation, without more, does not establish that counsel were ineffective. Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980); see Rosa v. United States, 170 F. Supp.2d 388, 400 (S.D.N.Y. 2001). Further, in counsels' affidavits filed in response to Meyer's state habeas corpus applications, counsel stated that they communicated fully with Meyer about possible witnesses and trial strategy. (3 State Habeas R. at 40-41, 43-44; 4 State Habeas R. at 43-44, 46-47.) The Court of Criminal Appeals held that trial counsel was not ineffective on this basis. (3 State Habeas R. at 48-52, 56; 4 State Habeas R. at 51-55, 59.) The factual finding that counsel sufficiently consulted with Meyer is presumed correct. Thus, counsel were not defective.
Meyer next argues that counsel were ineffective for failing to review the State's file. One of Meyer's attorneys stated in his affidavit that he reviewed the State's file, which was credited by the Court of Criminal Appeals. (3 State Habeas R. at 44, 49, 56; 4 State Habeas R. at 47, 52, 59.) Thus, this finding is presumed correct, and counsel was not defective. 28 U.S.C. § 2254 (e)(1); 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). His other attorney did not address in her affidavit Meyer's claim that she failed to review the State's file. However, even if counsel was defective, Meyer has failed to allege what counsel would have discovered by a review of the State's file that was not found during her preparations for the case. Because of the conclusory nature of this claim, Meyer has failed to prove prejudice. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000); Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).
Meyer asserts counsel were ineffective for failing to conduct an independent investigation into his case. He also argues that counsel did not investigate the scene of the crime. In order to establish that counsel were ineffective due to a failure to investigate the case or to discover and present evidence, Meyer must do more than merely allege a failure to investigate — he must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have altered the outcome of the trial. Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Rose v. Johnson, 141 F. Supp.2d 661, 691 (S.D. Tex. 2001). Meyer's conclusory allegation that his counsel were ineffective for failing to investigate and prepare fails to meet his burden of specificity. Thus, Meyer fails to establish either deficient performance or prejudice on these claims. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Miller, 200 F.3d at 282.
Meyer argues that counsel were ineffective for failing to investigate the State's witnesses. In their affidavits, counsel stated that they investigated the State's witnesses. (3 State Habeas R. at 40-41, 44; 4 State Habeas R. at 43-44, 47.) The trial court and Court of Criminal Appeals credited counsels' statements and found that they were not deficient. (3 State Habeas R. at 48-52, 56; 4 State Habeas R. at 51-55, 59.) Meyer has failed to overcome the presumption of correctness of these findings; thus, counsel were not deficient. 28 U.S.C. § 2254 (e)(1); Smith, 696 F.2d at 367.
Meyer next argues that counsel failed to review the enhancement paragraph of the indictment. Counsels' affidavits show that they reviewed the enhancement paragraph and found nothing objectionable. (3 State Habeas R. at 41, 44; 4 State Habeas R. at 44, 47.) Meyer has, again, failed to overcome the presumption that the state courts' finding that counsel were not deficient was correct. 28 U.S.C. § 2254 (e)(1). Counsel were not defective. Smith, 696 F.2d at 367.
Meyer contends that counsel were ineffective for failing to call four defense witnesses he requested: Tammy Hammons, Jennifer Touchet, Chad Dirden, and Deionne Hartnett. According to Meyer, these witnesses would have testified that the victim fabricated the charges against Meyer. (Pet'r Mem. at 10; Pet'r Reply at 4-5.) Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre, 238 F.3d at 635-36. For Meyer to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witnesses would have testified at trial. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Meyer has failed to provide an affidavit or other evidence from the witnesses. The limited and conclusory information Meyer provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F. Supp.2d 398, 400 (ND. Tex. 2001).
Finally, Meyer faults his counsel for not filing a motion to dismiss the indictments because of the violation of his right to a speedy trial. As discussed above, Meyer's Sixth Amendment right to a speedy trial was not violated; thus, counsel cannot be held defective for failing to raise a nonexistent breach. See, e.g., Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (holding counsel not deficient for failing to make frivolous objection to correct statement regarding Texas law), cert. denied, 525 U.S. 1174 (1999); 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).
4. Summary
In sum, Meyer is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Meyer 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
Meyer'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 April 4, 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 April 4, 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.